If there is the threat of legal action against you or your company – and, sadly, there is probably always that threat to some degree – one of the more damaging things you can do is to leave yourself open to allegations of spoliation.
Here are a few of the essential things to know about spoliation among the many with which you really need to be acquainted:
This Weekly Ethics Thought is provided by Christopher Bauer and Bauer Ethics Seminars.
- For starters, you need to know what it is… Spoliation, for the present purposes, refers to the damage or destruction of evidence relevant to a legal inquiry. All the other ideas listed below apply to formal ethics inquiries in most industries as well.
- To cut to the proverbial chase, the most important thing to know about spoliation is simply this – don’t do it!
- There is no such thing as ‘a little’ spoliation. Something has been tampered with or destroyed or it hasn’t. While it is dimly possible that the court or ethics inquiry panel may forgive minor spoliation if the result doesn’t directly affect the case, your credibility will inevitably be shot and, face it, that can’t help your case.
- Emerging case law points to it being a bad idea to destroy information that even might be related to known or probable litigation. Make it clear to all employees that the alteration or destruction of any data and communications, whether hard copies or electronic, needs to be cleared with supervisors. Then be sure that all supervisors really know what can and cannot be altered or destroyed. (I’ll bet that few in your company actually know and they must!)
- You need to have clear, enforceable policies and procedures for documenting and accounting for lost or damaged information. As Price Pritchett has said, “Anyone can make an honest mistake but there’s no such thing as an honest cover-up.” Mistakes will happen but they need to be purposefully, pro-actively, and appropriately addressed.
Hidden electronic data will be found, inappropriate document shredding will be exposed, and instructions/collusion to spoliate will eventually be uncovered.
Do yourself and your company a huge favor by staying abreast of mandates regarding spoliation and assure that those mandates are followed or exceeded at every turn.
Christopher Bauer helps companies create and implement high-impact, high-ROI ethics and values training programs. In addition to consultation on program development and implementation, he also provides keynotes and seminars on how to reduce costly employee ethics problems. Information on his most-frequently requested keynotes and seminars can be found by clicking here.
Interested in ethics commentary and resources? Christopher Bauer’s Ethics Nexus blog can be found here. Additional resources can also be found by following “@ethicstweet” on Twitter.
“Better Ethics NOW: How To Avoid The Ethics Disaster You Never Saw Coming (Second Edition)” is available for purchase here. “Every manager and executive can learn from reading Better Ethics NOW.” – Steve Odland – CEO – Office Depot
copyright 2011 by Christopher Bauer – all rights reserved
(Information on Bauer Ethics Seminars is available at www.bauerethicsseminars.com.)
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