By: Michael P. Dickman, Esq.

Flood insurance, IT trainings and phishing alerts, and…document retention policies.  What do these have in common?  For any individual or business, these items seem like an unnecessary expense and administrative burden when all is well.  Yet, when plans change, difficulties emerge, and bold action is necessary to protect you and your business’s interests, they very well could be life preservers.

Earlier this year, the Suffolk Superior Court’s Business Litigation Session sanctioned defendants in a lawsuit arising from the ongoing construction of the condominium tower on Boylston Street in Boston over the Mass Turnpike.  (JFF Cecilia LLC, et al. v. Weiner Ventures, LLC, et al., Suffolk Superior Court, Civil Action No. 19-3317).  Through the normal course of discovery in that case, the plaintiffs sought correspondence pertaining to the project and other items germane to the dispute.  In the months before the lawsuit was filed, and therefore before receiving requests for production of documents, defendants purportedly deleted certain emails and texts responsive to those requests.  The Court held that defendants spoliated evidence for their failure to protect this documentation after they knew or reasonably should known of litigation stemming from the project.

Spoliation arises in scenarios where a party destroys or fails to retain evidence when on notice of a potential dispute.  The JFF Cecilia Court, upon a remand order from an Appeals Court justice, clarified that notice standard.  The Court stated that spoliation may be found if a party “destroyed relevant evidence at a time when they knew or reasonably should have known that litigation with the plaintiffs was ‘possible,’ even if a reasonable person would not have considered it to be ‘likely’ or probable.”

JFF Cecilia’s somewhat expansive interpretation of preservation-of-evidence obligations amplifies the importance of retaining relevant evidence to avoid potential spoliation sanctions.  If a court finds that spoliation occurred and that the spoliation prejudiced the other party, the spoliating party will face a variety of consequences, including an adverse inference at trial.  That is, if a party fails to produce an email relevant to the dispute after subjective or objective notice of a potential claim, the court may instruct the jury at trial that they may infer that the contents of the email were harmful to the party that could not produce the email.

The risk of spoliation sanctions highlights the importance of adopting the necessary safeguards and precautions to avoid these scenarios.  Because of concerns regarding adverse parties’ intentional or inadvertent destruction of potential evidence, oftentimes claimants submit litigation hold/preservation of evidence letters, particularly in business and construction litigation.  A preservation letter is intended, as the name suggests, to preserve all evidence or materials that the party believes will be relevant to the claim or lawsuit.

The need to retain certain materials is not limited to scenarios where you receive a direct request from an adverse party.  Even in the absence of a formal preservation letter, a party that knows or reasonably should know of the possibility of litigation arising from a project, transaction, etc. must retain evidence that might be relevant to that potential litigation.  A party’s failure to retain such material can be very damaging in the ensuing litigation.

Ligation hold/preservation of evidence letters are becoming ubiquitous in business and construction litigation.  Especially where business and construction disputes are heavily “papered” with a litany of correspondence stretching over a number of years involving many individuals, some of whom may no longer work for the business entangled in the dispute.  Missteps may give rise to spoliation claims.

Implementation of a formal document retention policy to ensure that documents are maintained for a certain length of time helps avoid spurious claims from adverse parties that you negligently or intentionally destroyed future evidence.  Companies that resist the need to establish distinct policies are penny wise and pound foolish.  Any costs and fees associated with the additional oversight will be worth the investment and protecting your interests if a lawsuit arises.  Such policies are not only defensive (i.e., to avoid spoliation claims) but geared towards going on the offense in litigation with an aggressive strategy.  Clear and logical document retention enables a party to have all helpful material at their disposal to craft an effective case theory and rebut the opponent’s version of events.


This alert is for informational purposes only and may be considered advertising.  It does not constitute the rendering of legal, tax or professional advice or services.  You should seek specific detailed legal advice prior to taking any definitive actions.