夜城律师来信：http://www.zhenzhubay.com/home.php?mod=space&uid=2&do=blog&id=30374

保留证据是法律义务。我的回信引用了加州最高法院的一个案例，该案中原告在起诉前4个月要求被告保留证据，但被告销毁了证据。法院虽然裁定销毁证据本身不能构成民事 tort，但有其他的惩罚。其中有一句话相当有洞察力。法院说：【"little motivation for intentional spoliation exists when the third party is wholly divorced from the litigation】，也就是说如果第三者与诉讼没有直接关系的话，一般来说不会有刻意销毁证据的动机。因此，法院说：【“if the third party spoliator is acting at the behest of a party, a negative inference may be drawn against that party." 】如果第三者在诉讼一方的鼓动下销毁证据，那么可以对该诉讼人做出负面推断。

August 19, 2015

Wei Zhong

Associate Attorney at Chen & Lee's Law Office
1455 Response Road STE 120
Sacramento, CA 95815

Via fax: (916) 880-5601

Dear Ms. Zhong,

            Thank you for confirming your firm's representation of yeyeclub.com ("Yeyeclub"). My first email to Yeyeclub clearly identified the information requested for preservation (not yet for production) as "malicious and defamatory attacks against me personally".  This is sufficiently specific. You know what attacks are when you see them. Also, my letter to you dating August 18 further stated that "I may have to institute defamation claims against [Mr. Liu] personally."

            Both a party and a non-party have a legal duty to preserve evidence. A party's intentional destruction of evidence may result in terminating sanctions. As to a non-party, in Temple Community Hosp. v. Superior Court of Los Angeles, 20 Cal.4th 464, 84 Cal.Rptr.2d 852, 976 P.2d 223 (1999), our Supreme Court recognized that "[t]hird party spoliation of evidence is analogous to perjury by a witness" and "[a] criminal sanction remains available under Penal Code section 135, as are disciplinary sanctions against attorneys who may be involved in spoliation."

            The Court is also mindful that "little motivation for intentional spoliation exists when the third party is wholly divorced from the litigation ... if the third party spoliator is acting at the behest of a party, a negative inference may be drawn against that party." Id.

            To claim undue burden in preserving the website data is curious, as all Yeyeclub needs to do is to run a simple backup command. Given the clear legal duty to preserve, it would seem wiser for your client to act out of an abundance of caution.      

 

            Sincerely,

 

           

 

Dongxiao Yue, Ph.D.

2777 Alvarado Str, Ste C

San Leandro, Ca 94577

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