As child welfare professionals, we have all encountered the “missing” record, most often during day-to-day advocacy. For those who practice child welfare tort litigation, incomplete discovery is also common, even though case records can be critical in determining negligence or malfeasance. In other forms of civil litigation, judges are asked to hold parties accountable for losing or destroying records, and juries are allowed to draw negative inferences about the missing evidence. In contrast, an investigation of child welfare torts reveals that when a defending agency fails to produce credible records, the issue is simply not litigated or does not affect the procedure or outcome of the case. This article examines the potential effects of failing to preserve or produce evidence in the child welfare context. Best practices are offered from three perspectives--the plaintiff, the defending agency, and the court.
Dale Margolin and Daniel Pollack, Where are the Records? Handling Lost/Destroyed Records in Child Welfare Tort Litigation, Aug. 2011, at 85.