Preservation notice. Follow-up

Question

Defense claims records of events crucial for case do not exist, but plaintiff has documents that events resulted into (evidence). Records of events were destroyed, or did not exist.  
Does demand for in-person inspection have advantage vs demand for production of records with consequent compelling further; for proving case from prospective of law?

James L. Arrasmith · Answer

To address this question effectively, let's break it down into key points and consider the legal implications: 
 
1. Preservation notice: This is a crucial first step in any litigation to prevent the destruction of relevant evidence. If a proper preservation notice was sent, the destruction of records after that point could lead to sanctions for spoliation of evidence. 
 
2. Claimed non-existence of records: The defense claims that certain crucial records don't exist, but the plaintiff has evidence of events that these records would have documented. 
 
3. In-person inspection vs. demand for production: 
 
In-person inspection advantages: 
- May reveal evidence that wasn't produced in response to document requests 
- Allows for immediate follow-up on any discrepancies or new information discovered 
- Can be more difficult for the opposing party to sanitize or selectively present information 
 
Demand for production advantages: 
- Provides a clear paper trail of what was requested and what was (or wasn't) provided 
- Easier to use in motions to compel if the response is inadequate 
- May be less intrusive and thus more likely to be granted by a court 
 
From a legal perspective, both approaches have merit, but the choice depends on the specific circumstances: 
 
1. If you suspect that records exist but haven't been produced, an in-person inspection might be more effective in uncovering them. 
 
2. If you believe the records truly don't exist, a demand for production followed by a motion to compel might be more advantageous, as it creates a clear record of the defense's failure to produce. 
 
3. Consider combining both approaches: First, make a formal demand for production. If the response is unsatisfactory, follow up with a request for in-person inspection. 
 
4. Document everything meticulously. If you can prove that records should have existed but were destroyed, you may be able to argue for an adverse inference instruction at trial. 
 
5. Consider deposing individuals who would have been responsible for creating or maintaining the records in question. Their testimony could be valuable in establishing whether records existed and what happened to them. 
 
6. If you have evidence of events that these missing records would have documented, make sure to preserve and present this evidence carefully. It may serve as circumstantial evidence of the existence of the destroyed or missing records. 
 
Ultimately, the most effective approach will depend on the specific facts of your case, the judge's tendencies, and your overall litigation strategy. It may be beneficial to consult with an experienced litigation attorney who can assess the particulars of your situation and advise on the best course of action.

Q: Preservation notice. Follow-up