Besides… if the people doing the most whining are to be believed, the evidence they claim I have “despoiled” still exists. They claim to have saved it. They can present it in any counter claim they are contemplating. Of course, I have the right to challenge its authenticity. But you can’t claim evidence has been “memory-holed” when you have preserved your own copy thereof. — Bill Schmalfeldt
While courts may consider many factors, the two most important factors in assessing spoliation sanctions are the culpability of the offender and the degree of resulting prejudice from the conduct. Considering culpability, courts assess the mental state of the actor along a continuum of fault ranging from accidental or inadvertent, to considerably more blameworthy, to knowing and purposeful. Generally, a dispositive sanction may be imposed only when the spoliation results from willfulness or bad faith. Where there is intentional conduct, the court can assume that the evidence would have damaged the spoliator’s case and impose sanctions accordingly. But in certain circumstances cases involving repeated unintentional conduct (i.e., gross negligence) may be met with a more severe sanction than a single act of bad faith.
NOT a Real Quote:
Michael J. Sorich: Mr. Schmalfeldt, can we look at any of the supposedly mean things you’ve posted online? We may need to prepare ourselves to defend your previous statements, or at least make sure your writings don’t contradict our theory of the case.
Bill Schmalfeldt: Wanna hear a funny sketch about Governor Rick Perry?