Vanity of the Bonfires: Spoliation of Evidence

, New York Law Journal


In his Matrimonial Practice column, Timothy M. Tippins, adjunct professor at Albany Law School, discusses the Second Department decision 'O'Loughlin v. Sweetland,' which affirmed a lower court decision that refused to impose sanctions upon a forensic custody evaluator who destroyed audiotapes of interviews she conducted in the course of her evaluation. The author writes: For those who still believe in due process, decisions of this sort send one screaming into the night.

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What's being said

  • Teresa Ombres

    Yikes, Tim! I love the Watergate quote. It sure does seem illogical to allow the destruction of the record that created the report. For a minute I thought the logic might be akin to the policy of mediators to destroy all notes except for written, signed agreements. But that is different since it is not in the context of a litigation. Mediators and clients agree that the process is confidential and none of the materials will be used in a litigation. Obviously such a principle cannot apply to a custody litigation. But it made me wonder if these forensic psychologists are destroying their evidence because they are ambivalent about their roles. On the one hand they are therapists with a clear duty of confidentiality, and on the other, court-appointed forensics where they are required to report.

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