What is the “spoliation” of evidence?

During the second E. Jean Carroll trial, former President Donald Trump’s lead counsel, Alina Habba, twice moved for a mistrial based on Carroll’s testimony on cross-examination that she had deleted death threat emails she had received.

During cross-examination of Carroll, Habba elicited testimony that Carroll deleted emails in which death threats were made against her and saved emails from people who provided words of encouragement.

The following exchange ensued;

Habba: Ms. Carroll, are you aware it is illegal to delete evidence?

Carroll’s lawyer: Objection

Habba: I move for a mistrial, evidence has been deleted

Judge Kaplan: Denied and the jury will disregard everything Ms. Habba just said

Later on the trial Habba renewed her motion stating,

This is a procedural irregularity that is not only appropriate for the Court to grant a mistrial, but it is essential under the circumstances. Plaintiff’s failure to preserve this purported evidence—in contravention of the Federal Rules of Civil Procedure—severely prejudices the President Trump’s defense since he has been deprived of critical information relating to critical evidence which Plaintiff has described to the jury.

That motion was also denied.

Habba’s “gotcha” moments fell flat, in part, because she was asking a witness to agree with a false statement about the law (that it is illegal to delete evidence) and requesting a mistrial on the basis of the deletion without comprehending the applicable rules and law.

While Habba generally alluded to the Federal Rules of Civil Procedure when she moved for dismissal a second time. She failed to specify which rule.

Presumably she was citing to Rule 37(e), which concerns the failure to preserve electronically stored information.

Rule 37 is titled “Failure to Make Disclosures or to Cooperate in Discovery; Sanctions” and addresses how to compel discovery and the consequences for failing to comply with discovery, failing to preserve discoverable information, and the destruction of relevant material.

Rule 37(e) states,

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

As noted in the Committee notes to the 2015 amendments to Rule 37(e), “It is designed to provide a uniform standard in federal court for use of these serious measures when addressing failure to preserve electronically stored information.

Rule 37(e) sets forth the standards evaluating whether there has been a failure to preserve electronically stored information and the consequences of such a failure. A failure to preserve is generally ascertained during discovery. In such event, the party demanding the production typically moves to compel the production and, where such information once existed and has not been preserved, takes discovery concerning when the party in possession or control over the information knew or should have known that the information should be preserved and failed to do so.

During pretrial proceedings, an aggrieved party typical files a motion seeking a determination that after a duty arose to preserve information relevant to a claim or defense the information was lost due to a breach of that duty and for the imposition of a sanction on account of that breach. The sanctions may range from having to incur the costs of a computer forensics expert trying to restore the data, to the court giving an instruction to the jury at trial that it should presume the lost information was unfavorable to the party that failed to preserve it (commonly referred to as a adverse inference), and, in the most egregious cases, the dismissal or the action or entry of a judgment against a party. For example, former New York Mayor Rudy Giuliani has a judgment on liability entered against him in the election workers defamation case due to failures to comply with discovery.

Rather than undertake pre-trial motion practice directed towards the deleted e-mails, Trump’s counsel waited until cross-examination to raise the issue. There was nothing wrong with pursuing a line of questioning about the deletion of e-mails that Carroll claimed caused her distress and preservation of only those that were supportive. However, Habba went beyond that by incorporating an incorrect statement about the law into her questioning, namely that the deleting of evidence is illegal. Carroll’s counsel appropriately objected and the judge struck Habba’s question from the record, thereby reducing the potency of the testimony she had just elicited.

The foregoing underscores the importance of understanding the applicable rules, complying with court imposed deadlines, and seeking appropriate relief for a failure to comply with discovery or preserve evidence.

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