February 28, 2017 Articles

Spoliation Complicates Remediation: Consider the Duty to Preserve

The point at which the duty to preserve attaches should now be of greater concern to prospective plaintiffs who engage in remediation prior to filing an environmental contamination lawsuit.

By H. Joseph Drapalski – February 28, 2017

As in other realms of litigation, the duty to preserve evidence applies with equal force in environmental litigation, yet property owners often find it necessary to remediate contamination prior to filing a lawsuit against potentially responsible parties. Owners of contaminated property must therefore walk a fine line not to violate their duty to preserve evidence prior to seeking cost recovery. This line may have just narrowed further due to recent decisions in the U.S. District Court of Connecticut and the New Jersey Superior Court Appellate Division holding that the duty to preserve attached, and was subsequently violated, when environmental consulting firms engaged in prelitigation remediation in anticipation of cost recovery litigation. 

Premium Content For:
  • Litigation Section
Join - Now