Spoliation is the intentional, thoughtless, or negligent withholding of evidence through hiding, fabricating, altering, or destroying records relevant to legal issues. It has become increasingly prevalent in a modern world of large businesses. It is often not seen as an issue, by many organizations, until it is too late.
In the course of the average professional’s day, records are necessary for the completion of work. They are rarely the objects of scrutiny themselves, as they form the byproduct of normal activities. This speaks to the natural accumulation of records which, in part, defines them. A situation, usually legal in nature, might occur where the records themselves might be subject to critical examination from outside parties.
When these recordkeeping systems must be accessed for purposes other than reference or normal work processes, the cause is often in relation to a third party which may be looking to prove a legal claim against the organization. The ultimate goal of any recordkeeping system is to provide evidence of the organization’s activities, while maintaining the authority of those same records. It is important that these records be preserved in the first place, with no gaps in their relationships. They must also be made available when requested for purposes of litigation.
In two cases brought before the Equal Employment Opportunity Commission (EEOC) was the higher jurisdiction. Upon learning of either a lack of evidence or the active withholding of evidence, led to the defendants being charged with spoliation.
In the case of EEOC v. GMRI Inc., an operator of hotels and restaurants, the lack of evidence represented a gap in GMRI’s records and was just as damning, if not more so, than the records that should have been present. This gap in GMRI’s natural recordkeeping practices reflected a breach in the normal operations of their business. This breach then justified a deeper scrutiny of GMRI’s recordkeeping procedures.
It was discovered that GMRI knowingly destroyed emails, hiring booklets, and other records pertaining to the hiring process in a possible attempt to cover their illegal practice of ‘hiring young.’ This was done after the investigation was called. As a result, the EEOC has decided to pursue sanctions against GMRI Inc., who maintain they are being punished for a lack of evidence, and not illegal activity. While the case has yet to be tried, the gap that was present in the records brought scrutiny on the organization and has the possibility of ending in sanctions against them. These charges are in addition to the previous allegations.
The second example here relates to the failure of a company to halt the destruction of records that are still relevant. JBS USA LLC. claimed that their records had been destroyed in the normal operations of their records retention schedule. These records were destroyed after the case has been brought against them.
Of course, the failure to prevent the destruction of records relevant to a legal case, even if those records are properly scheduled to be destroyed, is spoliation. Regardless of intent, charges were laid because of JBS’ failure to prevent record destruction when legal proceedings began.
After several years of trial, however, these records were allegedly found in a warehouse owned by JBS. Not only does this omission seem like spoliation and cast suspicion on the record retention schedules of JBS, it also draws the authenticity and authority of those records into question. As a result, JBS faces possible sanctions and further legal proceedings, on top of their initial charges.
How then, in a world of rising litigiousness, does one protect themselves and their organizations from accusations of spoliation?
While part of the answer consists of being forthcoming and honest in any legal proceeding, the other part of the answer comes from establishing proper records controls so that you do not inadvertently overlook or destroy records required for litigation.
The establishment of record retention schedules as a regularly revised and adjusted part of natural business practices represents the best defence against accusations of spoliation. The early establishment and complete adherence to a record retention schedule, based upon a thorough functional analysis, organizational analysis, and examination of legal requirements will best protect an organization.
Spoliation is not dependant on the organization’s role in society or nation of origin. It is dependant on the existence of records and the systems they inhabit. The failure to preserve evidence, no matter the intent, may result in stiffer penalties for spoliation of evidence, regardless how damning that evidence might have been.
Hopefully the example of these organizations can serve to prevent others from making the same error. Never underestimate the power records hold as evidence. To properly manage current records, one must create a records retention schedule and regularly revise it.