HERE'S A TRICKY SCENARIO: The lawyer for a landfill developer directs the landfill's consulting engineer to destroy all drafts of a report as he works toward a final version.
“Does it make any difference if the drafts reflect more than just my own impressions and thoughts?” the anonymous engineer asks. “What if some of the content of the successive drafts change, based on comments from the lawyer herself? Am I better off saving her e-mails and other communications to cover my backside, or should I simply delete all this material as she's told me to do?”
Sadly, the destruction and alteration of documents is becoming routine practice. As a result, lawyers who litigate seem less excited about finding incriminating documents than learning an opponent has destroyed papers or other matter.
The answer to the engineer's question depends on whether materials are “discoverable” — that is, whether the documents, data, information or other items may be useful to any party in supporting a claim or defense in litigation. Under federal district court rules, a party “may obtain discovery regarding any matter … that is relevant to the claim or defense of any party, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of any discoverable matter.”
If a party fails to reveal information about a relevant matter, a district judge may order the disclosure or production of the withheld item. Moreover, the information or material itself does not need to be admissible at the trial. It's enough if the information might lead to the discovery of admissible evidence.
When a party intends to use an expert to present evidence in a federal court, special rules apply. The party must turn over any reports prepared or signed by the intended witness, including a statement of all opinions to be expressed and “the data or other information considered by the witness in forming the opinions.” The key word is “considered,” which simply means to take into account. Thus, if an expert merely has reviewed, but not necessarily relied upon, certain materials related to the litigation's subject matter before giving an opinion, then these documents must be disclosed. These include material furnished to, and communications with, the expert by an attorney or by consultants and other experts who won't be testifying, as well as the expert's draft reports and notes.
If a lawyer directs an expert to destroy any of this material, both the lawyer and the client she represents can be penalized. For example, a court awarded a plaintiff nearly $180,000 in fees and costs when the defendant had destroyed discoverable report drafts and e-mails. It also ordered the defendant to hire a technology consultant to retrieve as much of the data and information as possible, and allowed the plaintiff to participate in the process. [Trigon Ins. Co. v. United States, 204 F.R.D. 277 (E.D.Va. 2001)]
A consultant with nagging doubts about instructions from a lawyer to destroy documents might want to seek independent legal advice.