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BHGR Newsletter: Discarding Soil Samples may Result in Evidence Preclusion at Trial

July 2009

Be careful and plan ahead is the moral of this story. A longtime property owner learned about contamination of its property with a toxic substance known as PCBs (polychlorinated biphenyls). In retaining an environmental engineer consultant to take samples, the owner knew that litigation against those responsible for polluting its property may be the subject of future cost recovery claims by the property owner. In fact, the pre-litigation sampling was partly designed to build a case against the other entities.

The owner’s consultant, however, did not preserve the samples after the lab completed its analysis. Nor did the consultant preserve the electronic data generated from the lab’s analytical work.

After the property owner sued the entities it believed to be responsible for the pollution, the entities filed a motion with the court to either dismiss the case against them or to sanction the owner for not preserving the samples. The entities claimed that the samples constituted evidence in the case and that they were unfairly prevented from analyzing the samples to show that they were not responsible for the pollution.

The Federal District Court in Connecticut held that a consultant’s discarding of soil samples after testing in that case will preclude admission of evidence based on those samples. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.”

The court held that the duty to preserve soil samples attached when the owner’s counsel became actively involved, that the owner breached its duty to preserve evidence, and that the appropriate sanction in that case was preclusion of the evidence based on the discarded soil samples.

While the property owner did not purposefully destroy evidence to gain an advantage or disadvantage over the entities, the consequences of the loss of the evidence were significant, according to the court. Because the entities were precluded from what might have been a bright-line defense that could eliminate the need and expense of a trial, the court said that the appropriate sanction to adequately address the harm was to penalize the property owner and deter future destruction of evidence by barring the admission of the evidence based on the destroyed soil samples. See Innis Arden Golf Club v. Pitney Bowes, Inc., _____ F.R.D. ____, 2009 WL 1416169 No. 3:06cv1352 (JBA) (D. Conn. May 21, 2009).

This case highlights the need to carefully plan investigation and sampling strategies in conjunction with possible litigation needs, engage legal counsel to review draft technical documents, and negotiate the terms of contracts with environmental engineering firms to address liability for issues such as this. Our Environmental & Water Law and Natural Resource Development Practice Groups can assist you with navigating this process.

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