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Business Litigation: November 2012 Archives

Well-Tailored, But Does It Fit?

Do "tailored remedies" always fit? The doctrine of spoliation recognizes that "a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results." Keene v. Brigham & Women's Hosp., Inc., 439 Mass. 223, 234 (2003). Judges should "impose the least severe sanction necessary to remedy the prejudice to the non spoliating party," which provides latitude to impose the sanctions proportionate to the nature of the spoliation. See Keene, 449 Mass. at 235; Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 550 (2002). To the extent that destroyed evidence merely prejudices, but does not foreclose, another party's ability to prosecute or defend a claim in the litigation, certain evidence may be excluded as a result. Fletcher, 437 Mass. at 550.

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