When litigation or arbitration is in reasonable contemplation, parties have a duty to preserve relevant documents. Some basic tips include:
- Put a “hold” on document destruction;
- Take steps to avoid the routine destruction of electronic documents, including emails and even hard drives or voicemail records;
- Consider sending a reminder to the opposite side of the file;
- If there is reason to believe that the other side has destroyed documents, you may wish to seek a preservation order to prevent additional destruction.
If documents are destroyed, there can be adverse consequences. The principle of “spoliation” applies when a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was destroyed to affect the litigation. In such instances, it will be presumed that the evidence would have been unfavourable to the party who destroyed it.1
If the destruction was particularly blameworthy, a claim may be dismissed in its entirety,2 and the courts have not foreclosed on the possibility that spoliation may even constitute an independent tort.3
Even where destruction was unintentional, a court has discretion to fashion a remedy to “level the playing field,” for example, by imposing costs consequences or making an order for additional discovery. This authority is grounded in the court’s ability to control its own procedure and prevent abuses of process, and is therefore, also relevant in the arbitral context.
The issue of spoliation is a matter best left for the trier of fact. Given the findings of fact required to determine whether spoliation has occurred, the courts discourage pre-hearing applications for spoliation remedies.