What is spoliation?

Spoliation occurs when a person or company withholds, alters, hides, or destroys evidence that’s relevant to a civil or criminal case, either intentionally or negligently.

In personal injury and similar torts contexts, spoliation is a particular concern when trying to prove products liability.  When a plaintiff is injured by a defective product, the product itself is often the best piece of evidence the plaintiff has to show how the product was dangerously designed, manufactured, or lacked warnings about it most hazardous features.  The product itself is also the best evidence; a photograph or drawing of it may be used if it no longer exists, but these are not the same thing as being able to examine the defective product itself.

Electronic evidence, like e-mails, web browsing histories, and electronically-stored business records, have created new questions about what counts as “spoliation” and how these records should be handled.  While most states have ethics rules that prohibit attorneys from recommending spoliation in the face of a possible or real lawsuit, the fact remains that very few businesses have either the physical space or the computer capacity to store every copy of every document they deal with on a daily basis.  Therefore, spoliation law has focused on when it is acceptable to destroy certain records and how records should be stored in order to comply with spoliation rules and ensure the information is available in the best possible format for court.

Spoliation also became a major concern with the downfall of Enron in 2001, when the destruction or misplacing of thousands of accounting-related documents was used to cover up financial mismanagement and other misdeeds.  In response to this and other companies’ implosions, the U.S. government passed the Sarbanes-Oxley Act, which created new requirements for maintaining and preserving business records in order to protect them from spoliation in case of a legal dispute.  New penalties for committing spoliation were also created, even if the spoliation – say, the deleting of electronic bookkeeping records – occurred negligently rather than intentionally.

The penalties for spoliation depend on the laws and rules of evidence that apply in the particular court hearing the case.  In some jurisdictions, spoliation is prohibited by law and the penalties may include jail time, including jail time for contempt, or fines.  In other jurisdictions, spoliation is covered by common-law rules, and the penalty for being found responsible for spoliation may include a jury instruction that allows the jury to consider the spoliation when deciding how to reach its verdict.

Instructions that cover spoliage typically instruct the jury to consider the fact that someone who destroys, loses, or alters evidence – especially someone who does so intentionally – may have had a “guilty conscience” or known or suspected there was something to hide in that evidence.  Therefore, the jury is typically instructed that they are allowed to assume the evidence that was spoiled would have damaged the spoiler’s case.

When spoliation occurs, the plaintiff or defendant whose case has been hurt by the spoliation may also make a motion to dismiss the case on the grounds of spoliation.  If the court grants this motion, a new trial may or may not take place.

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