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Attorney Negligence And Negligent Spoliation: The Need For New Tools To Prompt Attorney Competence In Preservation, Paula Schaefer

Akron Law Review

Though case law typically suggests otherwise, attorney negligence is the primary cause of negligent spoliation of evidence. With the advent of ediscovery, it became markedly more difficult for attorneys to competently guide their clients through the steps necessary to preserve evidence¾particularly the categories of evidence most likely to help an opponent in a case. Unlike intentional spoliation instigated by an attorney, negligent spoliation is not the product of calculation. If an attorney were to undertake a cost-benefit analysis, negligent spoliation would not be a rational choice. The field of behavioral legal ethics provides insight into other reasons attorneys fail to …