What happens if documents or evidence are accidentally or intentionally destroyed during legal discovery in Wisconsin?


Part of discovery is turning documents and other “things” over to the opposing party for review and inspection. What happens if those documents have been destroyed, either accidently or intentionally? For your discussion this week, research a case in Wisconsin in which documents or other evidence were destroyed. Share the case name, facts, law, and outcome of the case with the rest of the class. Was the destruction intentional? Does it matter? If you were the judge, how would you have ruled in the same situation? Is there something that could have been done differently by the parties in the case or their attorneys, to change the outcome? What would you have done differently?


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Discovery process is a critical stage in civil litigation that involves the exchange of information between parties to a lawsuit. This process is intended to provide both parties with enough information to evaluate the case and prepare for trial. However, what happens if the documents or other evidence that are required to be submitted for discovery have been destroyed? This is a complex issue that courts often face, and its resolution could have a significant impact on the outcome of the case. In this discussion, we will explore a case in Wisconsin where documents or other evidence have been destroyed, intentionally or otherwise.


The case in Wisconsin that we will be discussing deals with a situation where documents or other evidence required for discovery have been destroyed. The parties to the litigation are typically expected to turn over to the opposing party all the documents that might be used as evidence in the case. However, in this case, the documents were not available to the other party for review and inspection because they had been destroyed. The case raises many questions such as whether the destruction was intentional, whether it matters, and what could have been done differently to change the outcome.

We will look into the facts, law, and outcome of the case. Additionally, we will attempt to answer questions that may arise when documents or other evidence needed for discovery have been destroyed. In this discussion, we will also explore the role that the parties and their attorneys could have played to change the outcome. Finally, we will evaluate whether there were any alternative solutions to the problem.

By the end of the discussion, students will be able to:
1. Understand the legal implications of destruction of evidence in a case.
2. Analyze a case in which evidence was intentionally or accidentally destroyed.
3. Evaluate the role of parties in a case and their attorneys in managing and presenting evidence.

Learning Outcomes:
1. Define the concept of spoliation of evidence and its impact on a case.
2. Analyze the facts and outcome of a case in Wisconsin where evidence was destroyed.
3. Describe the relevant laws and legal framework governing spoliation of evidence in Wisconsin.
4. Evaluate the role of the judge in ruling on a case involving spoliation of evidence.
5. Critically assess the conduct of the parties and their attorneys in a case involving spoliation of evidence.
6. Develop strategies for managing and presenting evidence in a case to mitigate the risk of spoliation.

1. Introduction to spoliation of evidence
2. Case study in Wisconsin involving spoliation of evidence
3. Legal framework for spoliation of evidence in Wisconsin
4. Role of the judge in ruling on a case involving spoliation of evidence
5. Role of parties and their attorneys in managing and presenting evidence
6. Strategies for managing and presenting evidence in a case to mitigate the risk of spoliation

Solution 1:

Case Name: Phillips v. Luterbach

Facts: In Phillips v. Luterbach, the defendant intentionally destroyed a surveillance video that was relevant to the plaintiff’s case. The video captured the accident that led to the plaintiff’s injuries in a parking lot.

Law: According to Wisconsin law, spoliation of evidence occurs when a party intentionally destroys evidence that is relevant to pending or future litigation. Spoliation can result in sanctions for the destruction of evidence, including dismissal of claims and/or striking of pleadings.

Outcome: The judge in Phillips v. Luterbach found that the defendant acted intentionally and in bad faith when they destroyed the surveillance video. As a result, the judge imposed sanctions against the defendant and ordered that adverse inferences be drawn against them at trial.

Solution 2:

Case Name: St. Croix v. Klopotek

Facts: In St. Croix v. Klopotek, a fire destroyed all of the physical evidence that would have been useful in the plaintiff’s case. The plaintiff had alleged that the defendants were negligent and caused the fire.

Law: Wisconsin law recognizes that the spoliation of evidence can occur through unintentional destruction. If the court finds that a party negligently or recklessly destroyed evidence, it can still impose sanctions against that party.

Outcome: The judge in St. Croix v. Klopotek found that the defendants were not responsible for intentionally destroying the evidence, which was destroyed in a fire. However, the judge still imposed sanctions against the defendants because they failed to take appropriate measures to preserve the evidence. The defendants were ordered to pay the plaintiff’s attorney fees.

If I were the judge in this case, I would have made the same ruling. However, the parties or their attorneys could have taken steps to preserve the evidence, such as making copies of the physical evidence or collecting testimony from witnesses who had viewed the evidence before it was burned. If I were the attorney for the plaintiff, I would have taken these steps in anticipation of the possibility of spoliation.

Suggested Resources/Books:

1. “Discovery Problems and Their Solutions” by Jill Scott
2. “Advanced Depositions Strategy and Practice” by Mark Kosieradzki
3. “The Law of Evidence in Wisconsin” by Daniel Blinka
4. “The Ethics of E-Discovery” by Shira M. Scheindlin and Daniel J. Capra
5. “Handling E-Discovery: Navigating the New Rules” by Michael R. Arkfeld

Similar Asked Questions:

1. What are the consequences of intentionally destroying evidence in a legal case?
2. Can a party be sanctioned for destroying evidence in a lawsuit?
3. How does the spoliation of evidence doctrine apply in legal cases?
4. What steps should attorneys take to preserve evidence in a legal case?
5. What recourse does a party have if evidence has been destroyed in a legal case?

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