As every litigator knows, the explosion of communications has come with an explosive increase in the volume of available evidence. Everyday communications are now recorded in emails, texts, posts and tweets, rather than being lost into the phone wires of the 20th century. In discovery, lawyers wrestle to demand, retrieve, examine and use these communications in the ever-broadening scope of cases of all sizes. And, when the communications are withheld, lost or destroyed, lawyers cry foul, raise claims of spoliation, and seek sanctions, evidentiary presumptions or other remedies. This is modern day-to-day commercial litigation. But what does it really take to substantiate accusations of wrongdoing?

The U.S. District Court for the Western District of Pennsylvania recently addressed the spoliation standard applicable in the Third Circuit in the case of Flanders v. Dzugan, 2015 U.S. Dist. LEXIS 111599 (W.D. Pa. Aug. 24, 2015). There, a building permit applicant brought a Section 1983 action and claimed that the governing borough had failed to issue a litigation hold, resulting in the possible deletion of relevant emails, and failed to retain potentially relevant permit records regarding a third party, in violation of state law. The defendant responded that the existence of any relevant emails or records at any time was pure speculation by the plaintiff.

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