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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88415
Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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Please refer to this article as it is the basis for my question

Customer Question

Please refer to this article as it is the basis for my question: “Spoliation of Evidence” http://www.wisbar.org/AM/Template.cfm?Section=News&Template=%2FCM%2FContentDisplay.cfm&ContentID=97710
The case I am in involves a plaintiff that moved the online business that is the center of the litigation one month after filing suit against me resulting in multiple file folders from the very massive 13 year old ecommerce site to become corrupted / ruined. Including files I need to defend myself. The plaintiff and his IT person (now expert witness) knew there was a portion of the site locked and encrypted by encryption key by me until the note was paid in full, per our contract, they moved without the key causing significant damage and loss of evidence.
I just cannot help but wonder if the Spoliation of Evidence Law is the answer
Submitted: 3 years ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 3 years ago.
If they knew there was going to be evidence in the matter and that moving it to another server could cause it to be lost, then spoliation of evidence is indeed a claim you can make in your case. The key to this is the court looks at the intent to destroy the evidence, whether malicious or not, so this is going to go to the reason they had for moving the files.


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Law Educator, Esq., Attorney
Category: Business Law
Satisfied Customers: 88415
Experience: All corporate law, including non-profits and charitable fraternal organizations.
Law Educator, Esq. and 2 other Business Law Specialists are ready to help you
Customer: replied 2 years ago.

Greetings Paul,

 

The deposition has finally happened to the party who owes me for my business. In regards XX XXX above matter his reply was: "He knew he did not have the encryption key needed to move the enitre site but felt because I held security to the site he was afraid I may attempt to regain control."

 

In other words he admits he understands the site was secured against the monies he owes me. He moved it anyways - how is this not an admission of theft? Why do I have zero rights for collections on the funds he owes me? Honestly I feel as if I need to find new cousel - again.... This has been going on now for 20 months and the first court date is not until November 2012 - one year away.... Do I have any recourse to end this sooner and recoup- my funds or my business?

 

Thank you again!

Expert:  Law Educator, Esq. replied 2 years ago.
IF he admitted to destroying not only evidence intentionally, but intentionally destroying your security interest, then you would consider filing your motion for summary judgment which is where the standard is that given all of the facts and evidence there are no material facts in dispute and viewing those facts in a light most favorable to the non-moving party you are still entitled to a judgment as a matter of law. Here, the defendant did not pay you, he admitted to destroying the security interests and evidence and as such those facts based on his deposition are not in dispute and as such you would deserve a judgment in your favor.
Customer: replied 2 years ago.

Thank you - this is the excat answer I found in the Wi Law Library. My attorney claims it is "to soon to attempt this" I fully disagree and from your answer you do as well. Do I search for new counsel? Do I attempt this motion alone in the courts? I am more confused than when this action began - I see a clear end and yet my counsel is blind to it - how would you suggest I proceed?

 

Thank you thank you thank you - I wish with all my heart you were in Wisconsin - I would retain you today. You are a complete stranger and have answered every question when the attorney I have now paid $67K in legal fees sends answers on average after 7 to 10 days after neing asked.

 

 

Expert:  Law Educator, Esq. replied 2 years ago.
It all depends on how much more evidence is remaining to be gathered. Generally, the MSJ is filed upon the completion of discovery. Filing too soon may allow the defendant to come up with some evidence to dispute a material fact which would defeat your MSJ and you only get one shot at the MSJ and this is why attorneys wait until the discovery period is over to prevent the other party from coming up with last second evidence to dispute your material facts.
Customer: replied 2 years ago.

I promise last question - to your reply - there has been what was called 1st Round Discovery and Interagotories(poor spelling I am sure). For the most part all the questions and requests were denied. How many "rounds" of discovery is common? Is there a limit to the number of discovery rounds?

 

Thanks :)

M

Expert:  Law Educator, Esq. replied 2 years ago.
The courts set the discovery schedule and determine the deadline date for filing dispositive motions, which is what an MSJ is. The problem is that until discovery has actually ended, which means that neither party can introduce anything else as evidence in a case, attorneys hate to submit an MSJ because of the fear of being surprised with some evidence that could still be produced in the case because discovery is still open.
Customer: replied 2 years ago.
Makes sense in an odd sort of way.... Learning I NEVER want to be in court again when this nightmare ends. I applaud your conviction to stay in such a difficult industry. Thank you with all my heart thank you!
Expert:  Law Educator, Esq. replied 2 years ago.
Thank you.

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