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Legal Memorandum: Appropriateness of a Summary Judgment

Issue: Whether a trial court erred in granting summary judgment in favor of an employer where an employer failed to collect and preserve evidence.

Area of Law: Litigation & Procedure
Keywords: Summary judgment; Collection and preservation of evidence; Employer
Jurisdiction: Nebraska
Cited Cases: 689 N.W.2d 807; 849 F. Supp. 687; 268 Neb. 952
Cited Statutes: None
Date: 06/01/2007

In Scout v. City of Gordon, 849 F. Supp. 687 (D. Neb. 1994) TA s "Scout v. City of Gordon (D. Neb. 1994)" , the United States District Court for the District of Nebraska recognized that:

A spoliation inference or presumption may arise where it is shown that the destruction of evidence was: (a) intentional, (b) fraudulent, or (c) done with the desire to conceal and, thus, frustrate the search for the truth. . .   Generally speaking, there is no unfavorable inference where the circumstances indicate a document or article has been lost or accidentally destroyed or where the failure to produce it is otherwise properly accounted for.

Id. at 691 TA s "Scout v. City of Gordon (D. Neb. 1994)"  (citations omitted).  Later, in Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004) TA l "Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004)" s "Trieweiler v. Sears (2004)" c 1 , the Supreme Court of Nebraska extended the spoliation theory beyond situations involving a destruction of evidence, but to a failure of a responsible party to create such records as were required by a fiduciary duty:

Here, the record does not clearly establish intentional destruction of financial records.  But it does establish an intentional breach of a fiduciary duty to maintain such records, which also may be indicative of fraud and a desire […]

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