Legal

Ask a Lawyer and Get Answers to Your Legal Questions

Ask a Lawyer,
Get an Answer ASAP!

Legal
This answer was rated:

As Hawaii courts have not resolved whetherHawaii law would

As Hawaii courts have not...

As Hawaii courts have not resolved whether Hawaii law would recognize a tort of spoliation of evidence (whether intentional or negligent spoliation), would we simply file a “Motion for Sanctions for Spoliation” ? and ask for 1. a judgment by default against opposing party; 2. or adverse inference instruction to the jury; 3. or the preclusion of evidence relating to the issue of our damages; or 4. for monetary sanctions ? I'm just trying to determine what I should file with the Circuit Court in response to Plaintiff's intentional/ negligent spoliation of evidence critical to proving our Counterclaims...

Show More
Show Less
Ask Your Own Legal Question
Answered in 6 minutes by:
5/15/2013
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified
Hi,

You would indeed file a Motion for Sanctions for Spoliation. The remedy you ask for really depends on the type of spoliation which took place.

What is the evidence which was spoliated?

How was the evidence spoliated (negligently or intentionally)?

What is your evidence of the spoliation?

What did you need the evidence for in your case?
Ask Your Own Legal Question
Customer reply replied 4 years ago

What is the evidence which was spoliated?

ESI - specifically, e-mail

How was the evidence spoliated (negligently or intentionally)?

they testify the electronic folder "disappeared"

What is your evidence of the spoliation?

by their own testimony in the Court Record & their Response to our requests for Answers & Production of Documents

What did you need the evidence for in your case?

ALL is needed for us to prosecute our Counterclaims of: Misrepresentation, Unfair & Deceptive Trade Practices, and Unjust Enrichment

Ah yes, I recall discussing this.

In your motion, you want to specifically describe the missing information and how you know it existed in the first place. You then need to go through and state why it was negligent that they have conveniently lost the information and that they had notice that this information would be in contention when they filed their lawsuit (provide facts and explanations to support this argument). Then, you state how exactly the spoliated evidence would support your case and why you cannot get this information from any other source, and thus have suffered "irreparable harm" because of the Plaintiff's negligent and potentially intentional spoliation.

Then, I would suggest that you seek an adverse inference instruction regarding the element of your counter-claim that the spoliated evidence would establish, and costs of bringing the motion as sanctions for the intentional/reckless spoliation.

TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified
TexLaw and 87 other Legal Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago

OK, thanks - and as to timing, we have not yet had our Pre-Trial Conference - file now, or ?

Yes! The sooner the better. The judge may reserve ruling on the motion until the pre-trial conference, but you want to file it now and have it as an ax dangling above their heads (increasing your leverage).

Ask Your Own Legal Question
Customer reply replied 4 years ago

If available, could you direct me to a sample Motion for Sanctions/ Spoliation ? And am I asking for Adverse Inference - NOT an Adverse Presumption ? How important is it for me to include Case Law in my Motion for Sanctions ?

A presumption is a higher sanction than an inference. An inference says "jury, you may infer that since the plaintiff destroyed this evidence, the evidence was against the plaintiff."

A presumption says "jury, you may presume that the evidence which the plaintiff destroyed established the element of ______(causation,liability, etc).

Unfortunately, I'm not aware of any form for a motion for spoliation.
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
Experience: Lead trial/International commercial attorney licensed 11 yrs
Verified
TexLaw and 87 other Legal Specialists are ready to help you
Ask your own question now
Ask TexLaw Your Own Question
TexLaw
TexLaw
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4,430
4,430 Satisfied Customers
Experience: Lead trial/International commercial attorney licensed 11 yrs

TexLaw is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it.

LeeMichigan

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,775 satisfied customers

JD, BBA Over 25 years legal and business experience.

Ely

Ely

Counselor at Law

24,218 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

INFOLAWYER

INFOLAWYER

Attorney

20,218 satisfied customers

Licensed attorney helping individuals and businesses

JPEsq

JPEsq

Attorney

2,132 satisfied customers

Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor

Law Educator, Esq.

Law Educator, Esq.

Attorney

41,455 satisfied customers

JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law

Ellen

Ellen

Lawyer, Consultant

8,238 satisfied customers

25 years of experience helping people like you.

Guillermo J. Senmartin, Esq.

Guillermo J. Senmartin, Esq.

Attorney

287 satisfied customers

7+ years of experience handling various legal matters.

< Previous | Next >

Related Legal Questions
TORT-CLAIM: United States Code § 2401 (), Recuse Due To:
Recuse Due To: "INTENTIONAL-MEDICAL-INJURY by: R.N./EMPLOYEE? … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers
I am looking for a tort claim form in nj, new jersey. that
i am just looking for the tort forms for wrongful acts in the state of nj… read more
Attyadvisor
Attyadvisor
Doctoral Degree
6,867 satisfied customers
Do different torts have different statutes of limitations
Do different torts have different statutes of limitations such as Personal Injury verses Abuse of Process vs Trespass etc?… read more
KJL LAW
KJL LAW
Juris Doctorate
1,616 satisfied customers
I received a circuit court disposition order in and for
I received a circuit court disposition order in and for browsed county . It says restitution converted to civil lien. I have several questions… read more
ScottyMacEsq
ScottyMacEsq
Doctoral Degree
17,051 satisfied customers
Interested possible tort claim against va. Indiana
Interested possible tort claim against va JA: Because laws vary from place to place, can you tell me what state this is in? Customer: Indiana JA: Has anything been filed or reported? Customer: No JA: … read more
P. Simmons
P. Simmons
Attorney
Doctoral Degree
34,871 satisfied customers
Filed motion to stay money judgement in circuit court
filed motion to stay money judgement in circuit court pending appeal refused to rule citing lack of jurisdiction appellate court denied … read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers
9-22-17 draft ______________ In the 8th Circuit Court of
9-22-17 draft ______________ In the 8th Circuit Court of Cheshire County State of New HampshirePlaintiff, Amy Zuckerman Vs, Defendant, ***** *****COMPLAINTNow comes the Plaintiff, Amy Zuckerman, and f… read more
Ray
Ray
Lawyer
Doctoral Degree
30,179 satisfied customers
When does a circuit court want a "line"? Adding a name or
When does a circuit court want a "line"? Adding a name or fixing an address? Why can't we just submit a revised form? Are there rules for when a line needs to be filed and how to do it?… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,188 satisfied customers
I need to submit a memorandum of appeal to the circuit court
I need to submit a memorandum of appeal to the circuit court opposing a district court judgement. I need help with format of the memorandum for Maryland courts and also maybe some help in writing the … read more
Irwin Law
Irwin Law
Juris Doctor JD
7,049 satisfied customers
Can a federal agency override a Circuit Court order just
Can a federal agency override a Virginia Circuit Court order just because the don't agree with it or feel it was granted with limited background or due diligence?… read more
Ray
Ray
Lawyer
Doctoral Degree
30,179 satisfied customers
I got a letter from the circuit court. A order of transfer
I got a letter from the circuit court. A order of transfer what do that men … read more
Ray
Ray
Lawyer
Doctoral Degree
30,179 satisfied customers
We were served with a summons in circuit court for a bill
We were served with a summons in circuit court for a bill that we did default on, I sent in the paper work and then the case went cold, we then received from the lawyer a dismissal without prejudice a… read more
Ray
Ray
Lawyer
Doctoral Degree
30,179 satisfied customers
Small claims case. Defendant filed counterclaim. At trial
Small claims case. Defendant filed counterclaim. At trial judgment in favor of defendant on plaintiffs claim. Also judgment in favor of defendant on counterclaim. Plaintiff has appealed requesting tri… read more
LawTalk
LawTalk
Attorney at Law
Juris Doctor
128 satisfied customers
Are you familiar with the Texas Deceptive tRADE pRACTICES
Are you familiar with the Texas Deceptive tRADE pRACTICES aCT? … read more
Dwayne B.
Dwayne B.
Juris Doctor
28,480 satisfied customers
How does it take in circuit court judge to render a decision
how long does it take in Virginia circuit court judge to render a decision after trial is over? … read more
Barrister
Barrister
Attorney/Landlord/Realtor
Doctoral Degree
34,597 satisfied customers
I lost a circuit court case after it was tried 3 times my
I lost a circuit court case after it was tried 3 times my attorney filed a motion appeal to the Appellate Court,where he forfeited her right to appeal the court's evidentiary rulings because he failed… read more
Bill Attorney
Bill Attorney
law
1,401 satisfied customers
I want to file a case in the Circuit Court in MI ; i WANT TO
I want to file a case in the Circuit Court in MI ; i WANT TO KNOW IF i have to submit complete addresses of all the people involved;besides the ''main'' person who they work for,or the one who is the … read more
Expert James
Expert James
Doctoral Degree
11,528 satisfied customers
Chancery division of the Circuit Court of County filing
Chancery division of the Circuit Court of Cook County filing motion to amend three previous motions and talk about that connection with Fidelity National F and rts of Lombard Illinois. I GOT A RETURNE… read more
Law Educator, Esq.
Law Educator, Esq.
Attorney
Doctoral Degree
41,455 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x