In many litigations, the outcome is not decided solely by the strength of the facts or the sophistication of the legal arguments. Increasingly, courts are focused on a different question:
What happened to the evidence?
When documents or data are destroyed after a legal dispute is reasonably anticipated, the issue is known as spoliation of evidence—and it can fundamentally alter the trajectory of a case.
What Is Spoliation?
Spoliation occurs when a party destroys, deletes, overwrites, or fails to preserve evidence that is relevant—or potentially relevant—to a legal dispute after a duty to preserve has arisen.
Spoliation can involve:
- Emails or electronic files
- Text messages or electronic communications
- Financial records or drafts
- Data deleted under routine retention policies
- Electronic data reduced to paper form while the underlying electronic information is destroyed
Importantly, spoliation does not require malicious intent; it does not have to be willful. Courts recognize that evidence can be lost through negligence, poor systems, or failure to implement proper preservation measures.
When Does Spoliation Become a Legal Problem?
The duty to preserve evidence arises when litigation is reasonably anticipated, not when a lawsuit is filed, continues throughout the discovery process, and right until the end of the case.
Once that point is reached:
- Routine document destruction must stop
- Deletion policies must be suspended
- A Litigation Hold (or “Document Hold”) notice and plan should be implemented
Destroying evidence after that point—intentionally or not—can expose a party to spoliation claims.
Who Can Get in Trouble for Spoliation?
Spoliation is not limited to one side of a lawsuit or one category of litigant, or even to the parties themselves, as attorneys for the parties have the responsibility as well.
Businesses
Companies may be held responsible when:
- Employees delete relevant emails or files
- IT systems continue auto-deletion
- Electronic data is not properly preserved
- Litigation holds are not issued or enforced
Corporate size or sophistication does not excuse failures in preservation.
Executives, Fiduciaries, and Professionals
Individuals who control key communications or records—such as executives, partners, trustees, or fiduciaries—may face scrutiny if evidence in their possession is destroyed after litigation is reasonably anticipated.
Preservation duties extend to:
- Personal devices used for business
- Personal email accounts used for work
- Drafts and informal communications
Individuals
Individuals involved in any type of litigation, including business litigation, employment, matrimonial, or trust-and-estate disputes are subject to the same preservation obligations. Deleting texts, emails, or electronic files—even on personal devices—can create serious exposure. Spoliation is not a “corporate-only” problem, individuals and
legal counsel, too, are responsible for document preservation.
Does Printing Documents Solve the Problem?
No. The destruction of electronically stored information (“ESI”) may still constitute spoliation even if paper copies are retained. Courts recognize that electronic data carries unique evidentiary value, including metadata and context that paper copies do not preserve. Printing and deleting is therefore not a safe harbor.
What Must Be Shown to Establish Spoliation?
Courts generally examine whether:
- A party had an obligation to preserve evidence
- The evidence was destroyed with a culpable state of mind (which can include negligence)
- The destroyed evidence was relevant to claims or defenses
When these elements are present, courts may impose sanctions.
What Sanctions Can Courts Impose?
The consequences of spoliation can be severe and case-altering.
Potential sanctions include:
- Adverse inference instructions, allowing a jury to presume the destroyed evidence would have been unfavorable to the party who destroyed it
- Preclusion of evidence or defenses
- Compelled disclosure of litigation-hold communications
- Monetary sanctions
- Severe credibility damage before the court
In some cases, spoliation issues become the dominant issue in the litigation—overshadowing the underlying dispute entirely.
Why Litigation Holds Matter in Spoliation Cases
A properly implemented litigation hold (also known as document hold) is a key step in litigation discovery and is often the difference between:
- An unfortunate data loss that can be explained, and
- A spoliation finding that reshapes the case
Courts closely examine whether a party:
- Implemented a litigation hold promptly
- Identified relevant custodians and data sources
- Suspended routine deletion practices
- Took reasonable steps to monitor compliance
Where litigation holds are missing, vague, or ignored, courts are far less forgiving. They also have to be maintained throughout the litigation and updated, as needed.
The High-Stakes Reality
Spoliation does not merely create procedural headaches. It can:
- Shift leverage
- Undermine defenses
- Expose sensitive internal practices
- Change settlement dynamics
- Decide cases before trial ever begins
For businesses, executives, fiduciaries, and individuals involved in disputes over income, equity, or significant assets, evidence preservation is not an administrative detail—it is a legal requirement.
Final Thought
Spoliation is rarely intentional—but its consequences are rarely accidental. Early legal guidance, disciplined preservation practices, and properly implemented litigation holds protect not just evidence, but outcomes. Handled correctly, preservation keeps the focus where it belongs: on the merits of the case. Handled incorrectly, it can become the case.
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This blog post is for informational purposes only and does not constitute legal advice. For specific legal counsel, please contact our office directly.