What Is Spoliation? A Complete Outline

  • Will Pfeifer
  • August 13, 2021

Legal departments today deal with ever-increasing data volumes. This, in turn, creates more risk as documents, images, videos, and other files come into existence. 

Now more than ever, it’s necessary to take active steps to protect information to be used as evidence in court. Failure to do so could negatively impact you and your clients—especially when dealing with criminal cases. 

Unfortunately, information doesn’t always make it to court. When information disappears before a trial, it’s referred to as spoliation. Perhaps unsurprisingly, this is one of the top threats facing legal teams today. 

Keep reading to learn what spoliation entails, why it’s an issue, and how to avoid it. 

Why Evidence Is Important

During a court case, both sides of the issue exchange evidence during the pretrial discovery process. 

Exchanging evidence is critical for providing or disproving a crime or allegation. Legal teams also need evidence to prove something occurred beyond any reasonable doubt. What’s more, evidence is also necessary to determine whether a person or entity should be given money to cover damages. 

With this purpose in mind, a lack of evidence can make it impossible to discover the truth. As such, it can also create a significant barrier for a jury. 

It’s important to realize that evidence can either be tangible or intangible. For example, tangible evidence may include a physical object like paper documents, clothing, and private property. 

Intangible evidence, on the other hand, usually comes in the form of electronically stored information (ESI). This may include digital writings, drawings, graphs, photographs, sound recordings, images, and other data or data compilations. 

What Is Spoliation?

Spoliation occurs when you knowingly or unknowingly destroy evidence. This applies to both tangible and intangible objects and information. 

For example, if you shred critical documents before a case and don’t have any copies, that’s an example of spoliation of tangible evidence. 

In order for ESI spoliation to occur, a few different conditions must take place. Firstly, the party needs to have full ownership over relevant ESI. Next, the party needs to lose, destroy, or modify the ESI for spoliation to occur. Additionally, the party needs to have a clear responsibility to preserve the ESI. Further, it must be impossible to restore or recover the ESI through any means. 

Evidence Versus Discoverable Information: Know the Difference

Jurisdictions tend to have different laws regarding the type of ESI that can be involved in spoliation. 

To illustrate, you may have a database full of information but only a few tables that are counted as evidence for the matter at hand. If you delete the extra information, some courts may consider that act spoliation. 

For this reason, it’s necessary to always keep data on file to be sure you avoid running afoul of the law. 

What Is FRCP Rule 37?

FRCP Rule 37 builds off FRCP Rule 34. To summarize, FRCP Rule 34 lets any party serve another party and request information prior to going to court. 

When the other party fails to comply with a Rule 34 request for discovery, FRCP Rule 37 applies. 

FRCP Rule 37 provides general guidance for failure to make disclosures or cooperate during discovery. In short, Rule 37 enables a party to submit a motion for an order compelling disclosure or discovery. This involves asking the court to force the other party to comply with the request. 

The court can either grant the request if there’s reasonable cause or choose to deny it. 

Section (b): Failure to Comply With a Court Order

In sum, Rule 37(b) gives the court the ability to take action if the other party fails to comply with a court order for a motion to compel discovery. 

Section (1) grants the court the right to treat failure to comply as contempt of court.

Section (2) allows the court to issue sanctions for not obeying a discovery order. If a party or party’s officer, managing agent, director, or witness fails to obey an order or permit discovery, the court can take further action. 

Additionally, this section explains the consequences of not producing a person for examination and the resulting expenses. 

Section (c): Failure to Disclose, Supplement an Earlier Response, or Admit

In the event one party fails to provide information or identify a witness, that party can’t use the information or witness to supply evidence at a hearing, on a motion, or at trial unless the failure is harmless or justifiable. 

The court may also order payment of reasonable expenses and attorney’s fees stemming from the failure to disclose. What’s more, it may inform the jury of the party’s failure and impose other sanctions, too. 

Furthermore, if a party fails to admit following a request under Rule 36 and the requesting party proves a document or matter is true, the opposing party may move that the party that fails to admit must pay a reasonable expense. 

What Happens When You Alter or Destroy ESI?

FRCP Rule 37(e) outlines what happens when you fail to preserve ESI. 

If the court finds prejudice to another party from the loss of information, the court may order reasonable measures to cure it. 

If the court determines that the party acted with intent to deprive another party of information during litigation, the court may presume the lost information was unfavorable to the party. 

It may also instruct the jury to presume the information was unfavorable. The court may dismiss the action or enter a default judgment, too. 

Why Information Governance Is Important

As you can see, it’s critical to preserve evidence to ensure optimal legal outcomes. 

Even though some information may hold no bearing in court, you may still have to present it for discovery at some point during a case. Destroying or losing the information could result in spoliation. 

Therefore, strong information governance is critical for success. Law firms and legal departments need to have rules in place instructing employees and eDiscovery professionals how to handle information. If you leave information management up to individual employees, your organization could accidentally lose important data. 

Information governance is an accountability framework for handling information. Companies use information governance to protect data throughout its entire life cycle—from creation to management to sharing and storage. 

By using information governance, it’s possible to avoid losing data during a case. Furthermore, information governance reduces the likelihood of experiencing costly security or privacy violations. 

Venio: A One-Stop-Shop for eDiscovery

One of the best strategies for handling digital information is to use a purpose-built eDiscovery platform. 

For example, Venio offers VenioOne for end-to-end eDiscovery management. VenioOne centralizes data management for easy and secure access. You can also use VenioOne for processing and culling—or reducing—large data sets. 

By culling data through VenioOne, it’s possible to preserve data for future use. All information can remain inside the VenioOne platform. This way, if another party or the court asks you to provide more details, you’ll know exactly where to find it. 

Feeling Overwhelmed About eDiscovery? Venio Can Help

It can be hard to keep up with evolving eDiscovery requirements. This is still an emerging field, and information changes all the time. 

Better yet, when you’re ready to see the platform in action, request a demo

Here’s to preserving all the data you need to get the outcome you’re after during your next legal case! 

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.