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Concerns when the other side is holding back records


Once again we’ll look at the concerns that a plaintiff may have as to whether the other side is altering and/or holding back certain documents or information that could be helpful to the plaintiff. When I say plaintiff, I mean the person who is pursuing his or her personal injury action. In the last blog we talked about ethical rules, rules that impose on the other side’s attorney, as well as your own, a duty of good faith in the pursuit or defense of a case. This duty includes a need to be candid to the tribunal, to the court (and not just at the trial but throughout the case) and a duty to be fair to the opposing counsel. Fairness has been construed as requiring that no document that has “evidentiary value” be altered or destroyed. A lawyer has a great obligation to ensure that destruction or alteration is not done and if in fact it was done, the lawyer has to remedy it. This can include bringing the alteration and the like to the attention of the of the tribunal. Wow.

Those are very strong sanctions and measures. There are additional ones and in this blog I will touch on them briefly. They come from cases in Massachusetts that govern the way we conduct litigation. The principle behind those cases is that there be fairness in the course of the litigation. I’m discussing this because I want to relieve any concerns that a client may have that the other side won’t play fair. If your lawyer is alert and conscientious in pursuing your case, this bad behavior will be hard for the other side to get away with doing.

The courts are willing to consider sanctions. “Sanctions in that [civil] action are addressed to the precise unfairness that would otherwise result. Thus, for example, an expert’s testimony (or portions thereof) may be excluded so that the expert would not have the unfair advantage of posing as “the only expert with first-hand knowledge” of the item.” (Fletcher v. Dorchester Mutual Insurance Company, 437 Mass. 544, 550 (2002). Evidence can be precluded from being introduced because one side has records or copies of things that they did not share with the other side.

There’s a whole doctrine, a whole notion of spoliation, and what happens when one side hides, conceals, or fails to reveal certain documents. In Massachusetts, the court seems to pride itself on going further than other jurisdictions. “Where evidence has been destroyed or altered by persons who are parties to the litigation or by people who are affiliated with that party and another party’s ability to prosecute or defend the claim has been prejudiced as a result because of that other side’s destruction or alteration of records, we have held that judge may exclude evidence to remedy that unfairness. We have also recognized, in the context of civil litigation, that fairness may require the exclusion of relevant evidence [where the behavior has been egregious]… We conclude that, in a civil case, where an expert has removed an item of physical evidence and the item has disappeared, or the expert has caused a change in the substance or appearance of such an item … the judge, at the request of a potentially prejudiced litigant, should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon. The reason for the rule is the unfair prejudice that may result from allowing an expert deliberately or negligently to put himself or herself in the position of being the only expert with first-hand knowledge of the physical evidence… In doing so, we’ve gone farther than other jurisdictions many of which address this concept of spoliation merely by permitting an adverse inference against the other side. [In contrast, here there would be an exclusion of evidence.” Nally v. Volkswagen, 405 Mass. 191 (1989) as cited in Fletcher at 550.

When you couple those things from the last blog- the ethical rules on an attorney of honesty, candor, and full disclosure– and case law which actually issues rulings that will stop a party’s bad behavior, you can go to bed at night knowing you should get a fair shake in the litigation and that however mean-spirited the other side may be, they may be called to account.

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