Navigating Rough Waters: A Pre-Litigation Compass

I. Introduction

By one estimate, more than 40 million lawsuits are filed every year in the United States.[1] As noted by the English poet George Herbert, “[l]awsuits consume time, and money, and rest, and friends.”[2] To be sure, lawsuits are often time-consuming, disruptive and expensive, which explains why President Abraham Lincoln famously counseled the legal profession: “Discourage litigation. Persuade your neighbor to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”[3] Inevitably, however, accidents, catastrophes and other injury-producing events beget lawsuits. It is therefore imperative that you (or your business) implement proper measures as soon as possible to assess risk and posture yourself (or your business) for the best possible outcome.

To that end, early retention of counsel can greatly increase the likelihood of a swift, positive outcome following an accident or occurrence. Developing and implementing a proper response and plan during the pre-litigation stage of a claim can be just as critical as the response and plan developed after litigation begins. Depending on the nature of the incident and the type of claim, a proper response may include:

• An early, pre-suit investigation, including interviews of key witnesses and review of relevant documents and data;
• Reviewing all applicable contract documents, including any mandatory arbitration / mediation agreements, as well as any hold harmless / indemnification clauses;
• Promptly notifying all liability insurers of a potential claim in accordance with the policy terms and conditions;
• Developing and implementing appropriate evidence / data preservation protocols to ensure that all relevant, discoverable facts and data (including electronically stored information (“ESI”)) are identified, collected, reviewed and preserved for use in the case and/or production in discovery, if the need arises;
• Early retention of consulting experts who can assist with the pre-suit investigation and evaluation of the claim;
• Evaluating the strengths and weaknesses of the claim alongside any available affirmative defenses, depending on the laws of the relevant jurisdiction; and
• When appropriate, participating in mediation or alternative dispute resolution in an effort to resolve the claim before it proceeds to litigation.

Each case is different and may require consideration of other factors. As discussed below, the benefits of hiring an attorney soon after an accident also include the protections afforded by the attorney-client privilege and work-product doctrine, as well as the attorney’s knowledge of applicable laws, experience handling similar claims and ability to evaluate the strengths and weaknesses of the claim. If litigation cannot be avoided, early retention of an attorney will help ensure you have made every effort to posture the claim for the best possible outcome.

II. Attorney-Client Privilege and Work-Product Doctrine

One of the primary benefits of hiring an attorney is the attorney-client privilege, which safeguards the client’s ability to engage in confidential communications with an attorney. The attorney-client privilege protects “[t]he client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney.”[4] Under the Federal Rules of Civil Procedure, privileged communications between the lawyer and client are protected from disclosure in civil litigation, and unless the privilege is waived, will not be discoverable.[5]

Closely related to the attorney-client privilege is the work-product doctrine, which provides for “qualified immunity of an attorney’s work product from discovery or other compelled disclosure.”[6] As defined by the Federal Rules of Evidence, “work-product protection” means “the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.”[7] The Federal Rules of Civil Procedure extend this protection to “documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or its representative.”[8]

These protections are by no means bullet-proof. For example, in Pennsylvania (as in most jurisdictions) the “[a]ttorney-client privilege will not ordinarily attach to communications made in the presence of a third party, and disclosing privileged communications to a third party waives the privilege.”[9] In Federal litigation (as in many States), privileged or protected material that is inadvertently disclosed may be “clawed back,” assuming reasonable steps have been taken to prevent disclosure and to rectify the erroneous disclosure.[10]

Although the work-product protection generally shields documents and tangible things prepared in anticipation of litigation by or for a party’s attorney, consultant, insurer, etc., determining when something is done in anticipation of litigation involves a fact-driven analysis. While Federal Rule of Civil Procedure 26(b)(3)(A) expands the protection to include activities performed by non-attorneys, courts have found that retention of counsel is a “highly relevant” factor when determining whether an activity was performed in anticipation of litigation.[11] The work-product doctrine is a safe haven that protects an attorney’s mental process so that she or he can properly analyze and prepare the client’s case.[12] There is a risk that the protection may be overcome once litigation ensues if the adversary demonstrates the information is otherwise discoverable and “that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”[13] Demonstrating “substantial need”, however, is a difficult burden to meet. As noted by the Advisory Committee when enacting Federal Rule of Civil Procedure 26(b)(3), “the substantial need inquiry ‘reflects the view that each side’s informal evaluation of its case should be protected, that each side should be encouraged to prepare independently and that one side should not automatically have the benefit of the detailed preparatory work of the other side.’”[14] A party seeking disclosure of protected work-product materials “must demonstrate that its need is truly substantial, and that there is no reasonable substitute for the documents.”[15]

In practice, the protections afforded by the attorney-client privilege and work-product doctrine are real and courts will enforce them, subject to limited exceptions. For purposes of evaluating a claim and assessing risk at the pre-litigation stage, these protections generally afford both the attorney and client the flexibility required to properly investigate a claim, interview key witnesses, work with the client’s insurers, work with consulting experts, and evaluate the strengths and weakness of a claim, without running the risk that the investigation will be discoverable by an adversary. In each case, before undertaking a pre-suit investigation, consult with counsel regarding the specific laws that apply in your jurisdiction, including the protections afforded by the attorney-client privilege and work-product doctrine.

III. Review Contracts to Help Chart the Proper Course

A. Indemnification and Insurance Provisions

Depending on the type of incident and whether a contractual relationship exists between one or more of the involved parties, it is possible that the risk of financial loss (including the cost of defending a liability claim) has already been allocated to another party by an indemnification or hold-harmless clause. For example, it is common for a subcontract agreement between a contractor and sub-contractor to contain indemnification language similar to the following:

To the fullest extent permitted by law, Subcontractor shall indemnify, defend, and hold harmless Contractor, Owner and their officers, employees, consultants and agents from and against all liability, claims, damages, losses, costs, fines and expenses (including attorney’s fees and disbursements) caused by, arising out of or resulting from the performance of the Work or the acts or omissions of the Subcontractor, its subsubcontractors or anyone directly or indirectly employed by the Subcontractor or any of its sub-subcontractors or for whose acts the Subcontractor or any of its subsubcontractors may be liable; provided that any such liability, claim, damage, loss, cost, or expense is caused, in whole or in part, by [such] negligent act or omission[.][16]

The same subcontract agreement may also contain terms which require the subcontractor to maintain primary liability insurance coverage which protects the contractor, owner, etc., in the event of a loss, such as the following:

Prior to starting Subcontract Work, Subcontractor, at its own expense, shall procure and maintain in force on all of its operations, primary insurance coverage in accordance with attached ‘Exhibit B.’ Subcontractor shall provide the Contractor with a Certificate of Insurance detailing the coverage referenced in ‘Exhibit B’ within thirty (30) days after signing this agreement or performing work on the site . . . . Contractor and such additional persons and entities as may be specified . . . shall be named as additional insureds on said policies, as shall any person or entity which Contractor is required to insure by the Contract Documents[.][17]

Thus, in the event of a loss or accident, it is crucial to review all applicable contract documents early for the presence of indemnification and insurance provisions like those cited above, so that all potentially responsible parties and insurers can be notified accordingly.

B. Arbitration (Binding Dispute Resolution)

Contract documents should also be reviewed early in order to determine if arbitration may be available (or mandated) as an alternative to litigation. The United States Supreme Court has described an arbitration agreement as “a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute.”[18] To illustrate, a typical arbitration agreement between parties to a construction contract may provide in part:

If the Contractor and Subcontractor have selected arbitration as the method of binding dispute resolution …, any claim subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Arbitration Rules in effect on the date of this Agreement.[19]

As a general matter, valid agreements to arbitrate governed by the Federal Arbitration Act will be upheld and enforced, notwithstanding conflicting or contrary state laws.[20]

Compared with litigation, the benefits of arbitration may include: a faster, more efficient method of dispute resolution; a decision by an arbitrator (or panel of arbitrators) rather than a jury; the elimination of time-consuming discovery and pretrial motions practice; and ultimately significant cost-savings for all parties. Questions may arise as to whether a specific arbitration agreement is valid, or whether a particular dispute or claim falls within its scope. And even where arbitration is available, the right to demand arbitration can be waived if the party who seeks to compel it fails to adhere to the terms of the agreement, or engages in conduct which is deemed inconsistent with the right to demand arbitration.[21] Counsel should be engaged as early in the process as possible to properly evaluate whether an enforceable arbitration agreement exists and applies to a particular claim and, if so, take appropriate steps to protect and preserve your right to demand arbitration.

IV. Shelter from the Storm: Insurance

Another important pre-litigation consideration is liability insurance. In the event of an accident or occurrence which may result in a claim, it is imperative that an insured promptly notify all potential liability insurers. Depending on the type of incident, this could include motor vehicle liability, business liability, commercial general liability (“CGL”), professional liability, worker’s compensation and/or umbrella or excess liability insurers.[22] To illustrate, the typical CGL policy contains the following condition:

1. You must see to it that we are notified as soon as practicable of an “occurrence” or an offense which may result in a claim. To the extent possible, notice should include:
   • How, when and where the “occurrence” or offense took place;
   • The names and addresses of any injured persons and witnesses; and
   • The nature and location of any injury or damage arising out of the “occurrence” or offense.
2. If a claim is made or “suit” is brought against any insured, you must:
   • Immediately record the specifics of the claim or “suit” and the date received; and
   • Notify us as soon as practicable.

You must see to it that we receive written notice of the claim or suit as soon as practicable.[23]

The obvious advantage to providing your liability insurer with prompt notice of an accident or occurrence is the financial protection afforded for covered claims—including the cost of defense counsel and indemnity payments (up to the policy limit) in the event of a settlement or (if the claim proceeds to suit) any judgment for damages. Failure to provide the insurance company with prompt notice of an accident or occurrence could jeopardize coverage and result in the loss of this protection.[24] It is therefore imperative that you review your policy and provide timely notice to your insurance company. If you have questions about reporting a loss or claim, specific policy requirements, or the coverage(s) provided by your policy, we recommend contacting your insurance professional, agent or broker and/or consulting with counsel.

V. Proceeding Above Board: Preservation of Evidence

When litigation is reasonably foreseeable or anticipated, it is critical to develop and implement appropriate pre-litigation measures to preserve evidence that may be relevant to any party’s claim or defense if litigation ensues. Failure to do so could result in game-changing consequences, including the imposition of sanctions or an adverse jury instruction against the party responsible for “spoliation” of evidence.[25]

Spoliation occurs when evidence in your custody or control that is germane (or even potentially germane) to an incident is destroyed or otherwise not preserved, and the destruction or lack of preservation interferes with the adverse party’s ability to establish its claim or defense.[26]  Spoliation also encompasses “significant alteration of evidence.”[27] A party’s obligation to preserve evidence for use in litigation arises not only when litigation is pending, but also when litigation becomes “reasonably foreseeable.”[28] Where “a party intentionally destroys evidence, the trial court may exercise its discretion to impose sanctions on the responsible party.”[29] Many jurisdictions have also found spoliation can occur if a party “negligently breached its duty to preserve potentially discoverable evidence.”[30] Some jurisdictions have recognized a separate cause of action for spoliation, even against a nonparty to the underlying claim.[31]

In some instances, continued preservation may not be possible. For example, a fire scene may not be able to be preserved due to the risk of a structural failure. In such a situation, all potential parties should be notified immediately and given an opportunity to inspect, if possible. Care should also be taken to document, as thoroughly as possible, all aspects of the evidence through photographs, video or other means, before the evidence is altered or destroyed. If a party subsequently asserts spoliation, the court will consider efforts made by the party attempting to preserve the evidence and the opportunity to inspect afforded to the parties in determining whether to sanction that party and the extent of any sanction.

Where litigation is reasonably anticipated, the pre-litigation duty to preserve evidence applies not only to documents and tangible things, but also to ESI. The Federal Rules of Civil Procedure provide in part:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

1. upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
2. only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

• presume that the lost information was unfavorable to the party;
• instruct the jury that it may or must presume the information was unfavorable to the party; or
• dismiss the action or enter a default judgment.[32]

Under this Rule, when deciding the threshold question of whether ESI has been “lost,” courts may consider three questions: “(a) did the discoverable ESI exist at the time a duty to preserve arose, (b) did the party fail to take reasonable steps to preserve the ESI, and (c) is the evidence irreplaceably lost?”[33] If the answer to any of these questions is no, that ends the inquiry. But if the answer to each question is “yes,” the court will then determine whether the loss of ESI was prejudicial to the party seeking its discovery, and whether the responsible party “acted with the intent to deprive another party of the information’s use in the litigation,” thereby warranting sanctions.

For anyone facing a potential lawsuit, the bottom line is that the risks associated with defending a spoliation motion can be eliminated at the pre-litigation stage of the case through early development and implementation of reasonable measures for identifying, collecting, and preserving evidence and communicating with any affected party before any potentially destructive testing is conducted. We highly recommend that counsel be retained early to assist with this important pre-litigation task.

VI. Selecting a Technical Officer: Consulting Experts

 Where feasible, early involvement of consulting experts can be a critical component to properly evaluating risk and case value, as well as preparing a defense in the event litigation ensues. In the typical case, the elements of a potential claim will involve such questions as breach of duty, causation, and damages, each of which may require input from a qualified expert. For example, understanding why a product failed or why a fire started may warrant early retention of an engineer or fire investigator. Likewise, assessing whether an alleged injury or disability was caused by an accident (for which you may be liable), as opposed to a pre-existing medical condition, may warrant early retention of a medical expert. Early risk assessment with input from a consulting expert can be crucial to making informed decisions regarding the proper handling of a claim, including whether a claim should be settled or defended.

Ideally, the early retention of a consulting expert is a decision that should be made following consultation with your attorney and any liability insurer. We recommend that any consulting expert be hired and consulted through counsel in order to maximize the protections afforded by the attorney-client privilege and work-product doctrine, along with the trial preparation protections generally afforded to consulting experts where litigation is reasonably anticipated.[34] And where a consulting expert is retained to inspect, test or sample evidence, proper protocols should be developed and implemented to ensure that any “destructive” testing occurs in the presence of all parties and only after all interested parties, including potential litigants and their insurers, have been provided with proper advance notice and the opportunity to inspect the evidence. This will help to avoid any argument in the ensuing litigation that you are responsible for “spoliation” of evidence.

VII. Mending the Hull: Subsequent Remedial Measures

After an accident, you or your business may want to make repairs or perform other remedial measures to ensure that a similar accident does not occur again, but you may have concerns that such measures will be used as evidence against you in a lawsuit filed by the injured party. The short answer is that although evidence of subsequent remedial measures is generally inadmissible to establish liability, it may be admissible for other more limited purposes. It is important to review the specific facts of your case (and the laws of your jurisdiction) with an attorney before making repairs or taking other remedial actions.

This is a frequently litigated issue. If a manufacturer modifies the design of its product to ensure its safe use in the future after the product has failed and caused an accident, is the post-accident remedial measure admissible to prove a defect in the product or its design? If the owner of a store repairs an apparent tripping hazard to protect future customers from injury after a patron has already tripped and fallen, is the post-accident repair admissible to prove the store owner was negligent? In Federal cases, the general answer is no. As noted by one court, “[i]n general, evidence of remedial measures is not discoverable or admissible to prove culpability in negligence cases.”[35] The Federal Rules of Evidence provide:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.[36]

Again, each case is unique and must be evaluated based on its own specific facts and the law of the applicable jurisdiction. Early retention of counsel can be the key to minimizing the risk that subsequent remedial measures may be admitted as evidence in any future lawsuit. Additionally, as discussed in the preceding section, care should be taken to avoid “spoliation of evidence” when undertaking any post-accident repairs or other remedial measures, to the extent that litigation is reasonably anticipated, and such repairs or other measures would involve alteration or modification of potentially relevant evidence.

VIII. Pre-Litigation Communications

Another important pre-litigation consideration is communications—verbal, written, and electronic. Simply put, if relevant to a party’s claim or defense, what you say before a lawsuit may be admissible (and potentially used against you) as evidence. For example, under the Federal Rules of Evidence, one party can introduce an opposing party’s statement into evidence in order to prove the truth of the matter asserted.[37] Additionally, statements against interest—defined as a statement that is “so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability”—may also be admissible, even if the statement would otherwise be excluded as hearsay.[38] The point here is that after an accident, your words (and the words of your employees) may matter if litigation ensues. For this reason, early involvement of an attorney who can provide guidance and counseling regarding your post-accident response and communications is crucial.

IX. Early Case Evaluation and Settlement Opportunities

As detailed above, the pre-litigation phase of a case may involve many complexities and considerations. At bottom, the goal in each will be to assess your potential exposure (or your liability insurer’s potential exposure) and minimize risk. How that will be achieved will depend on several factors, including the specific facts of the loss or incident, the laws of your particular jurisdiction, and feedback received from your attorney, insurance company and any consulting experts. Because litigation is time-consuming, expensive and can be disruptive to a business, there may be a benefit to exploring early settlement. Often, the liability insurance company has the right under the terms of the policy to make decisions regarding settlement, and therefore will handle settlement discussions with the claimant or claimant’s attorney. Occasionally, it may be more prudent to handle those discussions in the context of a mediation or settlement conference, with the assistance of a third-party neutral, especially where a claim involves more complexity or higher exposure. All discussions that occur during a mediation are confidential and (with limited exceptions) cannot be used as evidence in litigation.[39] Mediation can present an opportunity to learn more about your opponent’s case, evaluate the strengths and weakness of each party’s position, and determine whether the benefits of a potential settlement outweigh the anticipated risks of future litigation.

X. Getting Underway

The prospect of litigation often can be overwhelming. But as Mark Twain famously counseled: “The secret of getting ahead is getting started. The secret of getting started is breaking your complex overwhelming tasks into small manageable tasks, and starting on the first one.”[40] In the event of an accident which may result in a lawsuit, we recommend that you get started by consulting an attorney who can assist with developing and implementing an appropriate pre-litigation plan and response, posturing a claim for the best possible outcome.

[1]Top Court Filing Statistics from Around the Country, One Legal (last visited August 16, 2023), https://www.onelegal.com/blog/top-court-filing-statistics-from-around-the-country/.

[2] Limits of Litigation, Boston Law Collaborative, LLC (last visited August 16, 2023), https://blc.law/resources/quotes/limits-of-litigation/.

[3] Abraham Lincoln’s Notes for a Law Lecture, Abraham Lincoln Online (last visited August 16, 2023), https://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (citing The Collected Works of Abraham Lincoln (Roy P. Basler ed., 1953)).

[4] Privilege, Black’s Law Dictionary (11th ed. 2019); see also Fed. R. Evid. 502(g)(1).

[5] See Fed. R. Civ. P. 26(a)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case[.]” (emphasis added)).

[6] Work-Product Rule, Black’s Law Dictionary (11th ed. 2019).

[7] Fed. R. Evid. 502(g)(2).

[8] Fed. R. Civ. P. 26(b)(3)(A). “Representative” includes a “party’s attorney, consultant, surety, indemnitor, insurer, or agent.” Id.

[9] Sandoz Inc. v. Lannett Co., Inc., 570 F. Supp. 3d 258, 265 (E.D. Pa. 2021).

[10] Fed. R. Evid. 502(b).

[11] Brown v. Nicholson, No. 06-5149, 2007 WL 1237931, at *2 (E.D. Pa. Apr. 25, 2007); see also Garcia v. City of El Centro, 214 F.R.D. 587, 593 (S.D. Cal. 2003) (explaining that the work product privilege is less likely to apply when “there is no evidence . . . that an attorney was hired at the time of the investigation or that an attorney requested the preparation of a document”); Fine v. Bellefonte Underwriters Ins. Co., 91 F.R.D. 420, 422 (S.D.N.Y. 1981) (“The retention of counsel and his involvement in the generation of investigative reports for the insurance company is a factor in [the] determination [of when activities are performed in anticipation of litigation].”).

[12] U.S. v. Nobles, 422 U.S. 225, 238 (1975).

[13] Fed. R. Civ. P. 26(b)(3)(A)(ii).

[14] Rivera v. ALTEC, Inc., No. 3:21-CV-132 (GROH), 2023 WL 3097204, at *5 (N.D. W. Va. Apr. 26, 2023) (citing Sanford v. Virginia, No. 3:08cv835, 2009 WL 2947377, at *2 (E.D. Va. Sept. 14, 2009)).

[15] Id. (quoting Sanford, 2009 WL 2947377, at *2).

[16] Sheerin v. Tutor Perini Corp., No. 1:18-CV-7952-ALC-SLC, 2022 WL 992917, at *3 (S.D.N.Y. Mar. 31, 2022).

[17] Id. at *4.

[18] Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1919 (2022).

[19] Navigators Specialty Ins. Co. v. Jangho Curtain Wall Americas Co., Ltd., No. A-4222-19T4, 2020 WL 7239599, at *1 (N.J. Super. Ct. Dec. 9, 2020).

[20] Viking River, 142 S. Ct. at 1917 (“[T]he FAA preempts any state rule discriminating on its face against arbitration—for example, a law prohibiting outright the arbitration of a particular type of claim.” (cleaned up)).

[21] See, e.g., Morgan v. Sundance, Inc., 142 S. Ct. 1708 (2022).

[22] You should also determine whether the incident or occurrence must be reported to any state or federal governmental agency, such as the Occupational Safety and Health Administration (OSHA).

[23] Susan J. Miller & Phillip Lefebvre, 1 Miller’s Standard Insurance Policies Annotated, CG 00 01 04 13, col. I, GL-15, at 402a (6th ed. 2014).

[24] See, e.g., Mt. Hawley Ins. Co. v. E. Perimeter Pointe Apartments, 861 F. App’x 270, 277 (11th Cir. 2021) (unpublished) (“When it comes to an insured’s adherence to notice provisions, Georgia case law is quite settled. Insurance companies aren’t obligated to defend an insured or provide coverage if the insured unreasonably failed to comply with a conditional notice requirement.”); Nationwide Prop. & Cas. Ins. Co. v. Hutcheson, No. 2:20cv543, 2021 WL 5412274, at *3 (E.D. Va. Oct. 15, 2021), appeal dismissed, 2021 WL 8444873 (4th Cir. Nov. 30, 2021) (“Virginia courts have held that policy provisions that require notice of an accident or occurrence be given ‘as soon as practicable’ are enforceable and are construed as conditions precedent to performance of the contract” and “[a]s such, noncompliance with such a condition bars recovery.”).

[25] R.F.M.A.S., Inc. v. So., 271 F.R.D. 13, 23 (S.D.N.Y. 2010) (“Although a party must of course preserve any evidence requested in discovery, the duty to preserve relevant evidence attaches well before this. The obligation first arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” (internal quotation marks and citation omitted)).

[26] Emerald Point, LLC v. Hawkins, 294 Va. 544, 556, 808 S.E.2d 384, 391 (2017).

[27] Graff v. Baja Marine Corp., 310 F. App’x 298, 301–02 (11th Cir. 2009) (finding that removal and destructive metallurgic testing of the “critical piece of evidence” without notifying the defendant constituted spoliation).

[28] Athay v. Washington, No. 3:22-CV-5422-JHC-DWC, 2023 WL 3892328, at *4 (W.D. Wash. June 8, 2023).

[29] Coastal Bridge Co., v. Heatec, Inc., 833 F. App’x 565, 573 (5th Cir. 2020) (per curiam).

[30] E.g., Kounelis v. Sherrer, 529 F. Supp. 2d 503, 519 (D.N.J. 2008).

[31] Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 353–54 (Ind. 2005) (“Several jurisdictions, including West Virginia, Alaska, Montana, the District of Columbia, Illinois, New Mexico, and Ohio, recognize evidence spoliation as a cognizable tort . . . . But several other jurisdictions considering the issue, among them Florida, Mississippi, Arkansas, California, Iowa, Texas, Alabama, Georgia, Kansas, and Arizona have rejected spoliation as an independent tort.”).

[32] Fed. R. Civ. P. 37(e).

[33] Athay, 2023 WL 3892328, at *3.

[34] See Fed. R. Civ. P. 26(b)(4).

[35] Klosin v. E.I. Du Pont De Nemours & Co., No. 1:19-CV-00109-EAW-MJR, 2023 WL 2851704, at *3 (W.D.N.Y. Feb. 14, 2023), report & recommendation adopted, 2023 WL 2342288 (W.D.N.Y. Mar. 3, 2023).

[36] Fed. R. Evid. 407.

[37] Fed. R. Evid. 801(d)(2).

[38] Fed. R. Evid. 804(b)(3)(A).

[39] See Fed. R. Evid. 408.

[40] Available at https://www.goodreads.com/quotes/219455-the-secret-of-getting-ahead-is-getting-started-the-secret.