Discovery and evidence

Spoliation

Spoliation is the destruction or loss of evidence that a party had a duty to preserve for litigation.

The duty starts when litigation is reasonably anticipated, not when the complaint is filed, which is why companies send litigation hold notices telling employees to stop deleting. Auto-delete settings on email and chat are the usual culprits.

For electronic information, the court may order measures to cure the prejudice; only on a finding that a party acted intentionally to deprive the other side of the evidence may it presume the information was unfavorable, instruct the jury to do so, or dismiss the case.

The remedy depends heavily on intent. Negligent loss usually leads to curative measures such as allowing evidence about the loss, while deliberate destruction can support the harshest sanctions available, including terminating the case.

How it appears on a docket

MOTION for Sanctions for Spoliation of Electronically Stored Information, alleging that defendant failed to suspend a 90-day auto-delete policy after receiving a litigation hold.

Governing rule

Fed. R. Civ. P. 37(e)

Related terms

  • Sanctions — Sanctions are penalties a court imposes on a party or lawyer for filing something baseless, violating an order, or abusing the litigation process.
  • Discovery — Discovery is the pretrial process in which each side must hand over the evidence and information relevant to the case.

More on discovery and evidence

See this term in a real case

Search federal court records and read the filings where spoliation actually shows up. New to federal dockets? Start with how to find a federal case.

Search federal court recordsBack to the glossary