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Practice Tip: Spoliation and the 'Bad Faith' Requirement

By Josh Becker and Jenny Mendelsohn

The impact of a plaintiff's losing or destroying a product that is the subject litigation depends in large part on where the suit is pending. While attorneys likely appreciate the risk of judges applying spoliation law differently, they may not appreciate how spoliation jurisprudence can vary from state to state. For example, in some jurisdictions a finding of “bad faith” is required to impose sanctions. In others, whether “bad faith” exists or not is just one factor a court should evaluate when determining whether to impose sanctions. Still other courts do not even consider “bad faith” when determining whether to impose spoliation sanctions.

This article underscores the necessity of understanding the importance of preserving evidence given the jurisdictional differences in spoliation law. To illustrate these differences, we compare spoliation law in Georgia, Florida and Alabama ' three states that highlight the disparity in the law that can exist even between neighboring states in the same federal circuit.

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