Litigation holds seek to preserve evidence that might otherwise be destroyed. I know very little about this subject, so if in need I would seek counsel from K&L Gates E-Discovery Group conveniently located here in Seattle.

Yet, of the limited knowledge that I do posess, I am to believe litigation holds are issued almost exclusively in the corporate environment in order to protect a company from being labeled a spoliator which then allows the Court to render any spoliated documents to have the full negative effect claimed by the opposing party attached to them.

The classic example of a spoliator is ENRON, from those pre-2008 halcyon days when the elimination of a few huge companies did not bring on the toppling of the U.S. economy too.

Yet, I have two questions. What happens when a putative adverse posessor seeks to further alter the land prior to asserting a claim in an effort to more sufficiently fulfill the required elements? And, what if the title holder seeks to destroy that same evidence?  

Now if we consider that spoliation involves the destruction of one’s own evidence, the adverse possessor would be off the hook. He or she is creating false evidence – not destroying valid evidence. Which leads me to wonder what claim would apply here – especially if the case is already under way?

Separately, could the title holder, say by destroying a fence on his or side of the property line, be committing an act of spoliation?

We can be certain that the adverse possessor is going to claim RCW 4.24.630 which would shift attorneys fees and costs as well as provide for the replacement of the fence if the Court finds that this was a wrongful act.

So here’s the thought, if the fence was removed, couldn’t one argue that the Court should consider this an act of spoliation and as a result, deem its destruction in the light most favorable to the adverse possessor? If so, this would automatically trigger RCW 4.24.630, right?

Well, I guess this is something that I’ll leave for the ivory tower of academy to take up, if someone there so desires to do so. 

But, instead of just destroying a fence when there is a posibility of a boundary dispute, I would recommend having a surveyor get out to one’s place and at the very least ‘shoot the line’ of the fence AND establish the boundary line before taking the fence down. What do you think?