Primer on Spoliation in Litigation & eDiscovery

Spoliation is the destruction or alteration of evidence during on-going litigation or during an investigation or when either might occur sometime in the future. Failure to preserve data that may become evidence is also spoliation. Generally, the intentional or negligent destruction or alteration of evidence when there is current litigation or an investigation or there is reasonable anticipation that either may occur in the near future. Some jurisdictions also define it as a failure to preserve information that may become evidence.

Logikcull recently released a new report collecting original research into the impacts of the 2015 amendments to the Federal Rules of Civil Procedure—and the dramatic decline in spoliation sanctions that have followed. “The End of Sanctions?” explores how those revisions have led to a 35 percent decline in the rate of spoliation sanctions and a general “de-risking” of eDiscovery, removing much of the fear that once characterized discovery and opening up new opportunities for innovative legal professionals.

Rule 37 of the FRCP specifies that for there to be spoliation, the following conditions must all apply:

• a party must have had control over potentially relevant ESI;
• the party must have been under a duty to preserve that ESI;
• the ESI must have been lost, destroyed, modified, or altered;
• the loss must be due to the party’s failure to take reasonable steps to preserve the ESI; and
• the ESI must not be able to be restored, recovered, or replaced through additional discovery.

There are as many ways to spoliate ESI as there are types of ESI. A party might:

• delete files, emails, messages, or other information
• overwrite files
• throw away a computer, tablet, phone, or other device
• modify files
• modify file metadata

A finding of spoliation will often result in the imposition of sanctions and can significantly impact a litigation. Understanding how courts determine the appropriate spoliation sanction to impose is essential when this issue arises.