Leveling The Playing Field With The Jury Inference

By Peter Hargitai (December 7, 2017, 1:39 PM EST) -- What happens when a litigant has no access to an opponent's evidence because it has been destroyed or lost over time? The evidence (physical evidence, documents or electronic records) may be helpful or harmful to the party's case; it may be necessary to prove an element of a cause of action or vital to support an affirmative defense. What if the party who lost or destroyed the evidence was under no legal duty to preserve the evidence?

Generally, the party requesting production of the evidence argues that it would be prejudiced by its absence. The argument is often entirely speculative; how...

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