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the first question is is when do you have an obligation to preserve and the court has clearly said that if you have this distinct possibility of litigation you have a duty to preserve evidence and then the next question is all right who has to preserve it I'm John Walsh past president of the State Bar 1989 with the firm of actually brendensen and Madison this morning I was presenting a program on spoliation of evidence the destruction of evidence spoliation meaning alteration destruction and even concealment of evidence in the last number of years I've just seen an increasing number of cases where there's destruction or the evidence has disappeared somebody claims they can't find it the first question is is when do you have an obligation to preserve and the court has clearly said that if you have this distinct possibility of litigation you have a duty to preserve evidence and then the next question is all right who has to preserve it well clearly the client and the lawyer has to advise the client at the same time the lawyer that retains an expert to evaluate the product or the appliance or whatever it is the expert has a duty to preserve it can't engage in any destructive testing without the other side having an opportunity to see it know it and then the lawyer has a certain duty sometimes plaintiffs lawyers appropriately will take control of a particular product so that it is preserved but the lawyer working with the expert the lawyer also has a duty to make sure the expert and the client preserve that evidence clients often call and you get an unexpected call or a client says this happened all right could be a workers comp somebody injured on the job it could be a contract that didn't work out it could be one of their people are injured or one of their drivers injured someone else so they call you up and say well what should I do or we typically say well report it to your insurance company but at the same time we also have a duty to explain to the client if there's evidence that's involved and because there's a potential for litigation the client has to be advised as to how to preserve the evidence business clients for example hospitals bigger institutions insurance industry they all have a document destruction policy at a certain point in time they routinely destroy well they can't routinely destroy documents or evidence if there's a possibility of litigation so then a lawyer either has to alert the people in the company in-house counsel can but somehow people have to be told for this product or for this project do not destroy evidence I think it's going to be an issue I think we're gonna see more and more cases of it sometimes it's because people just aren't aware of the obligation to preserve it other times I think there's an effort to we made a mistake let's fix the problem let's get rid of some of these records sometimes it's in good faith a mistake other times there's there's a number of cases out there including Wisconsin where intentional destruction has occurred and the courts have to deal with it and figure out what the appropriate sanction is