What exactly is Spoliation?

Spoliation is simply defined as the intended activity which lead to the destruction of evidence.

The Situation: Many Are Not Aware Of Spoliation Rules.

In its simplest form, spoliation is the destruction or failure to preserve evidence that is necessary for use in contemplated or pending litigation. It may be willful, negligent or, in some situations, accidental, and has even been used in situations of destroyed evidence that would have been helpful in litigation that is not yet contemplated.

Generally, there is a lack of information available about spoliation, so we would like to raise awareness about it -- particularly with people who use Electronically Stored Information (ESI).

While an individual court has broad discretion, the most prevalent action taken with a claim of spoliation is to consider it an abuse of the discovery process and willful obstruction because the evidence is assumed to have been detrimental to the spoliator.

As reported by Corporate Counsel magazine,  it’s clear that 2014 was a big year for e-discovery, with at least 50 important decisions in state and federal courts, according to Kroll Ontrack. Within these opinions, five categories emerged most often:

1. Disputes over production

2. Opinions focused on preservation and spoliation

3. Cost considerations

4. Procedural issues

5. Sanctions

In fact the survey stated that 22 percent of opinions focused on preservation and spoliation, including when the duty to preserve is triggered. 

There has also been a significant increase in the reported number of appellate cases addressing spoliation.

Sanctions For Loss Of Electronic Data 

Plaintiffs’ attorneys initiate discovery disputes to discredit a defendant in the judge’s eyes and, when possible, generate sanctions.

Given virtually unlimited amounts of electronic data, the risk of lost files, and opportunity for plaintiffs’ lawyers to cry foul, is high.

The largest verdict in a product liability case this year, $9 billion, stemmed from sanctions for failure to retain documents. (The largest verdict in a product liability case in 2014 (and reportedly the seventh largest in U.S. history.) The $9 billion award against Japanese-manufacturer Takeda Pharmaceutical Co. Ltd. and its American partner Eli Lilly & Co. in ongoing litigation over the cancer risks of the diabetes medication, Actos.)

Proposed changes to the federal rules may help clarify document retention obligations.

NOTE: The Judicial Conference of the United States adopted amendments to the Federal Rules of Civil Procedure in September 2014 that may ease the costly burdens of over preservation of documents.  The changes emphasize that discovery should be “proportional to the needs of the case.” The rules drafters deleted the clause permitting any discovery “reasonably calculated to lead to the discovery of admissible evidence,” which they noted “continued to create problems” when courts used it to define a broad scope of discovery.  The revised rule for electronically stored information (ESI) requires parties “to take reasonable steps to preserve” ESI, which commentators suggest is meant “to reject the concept of strict liability” for loss of information. The rule changes now go to the U.S. Supreme Court for approval. They will take effect in 2015, if Congress does not act.

Parties To Litigation Need To Protect Themselves From Claims Of Spoliation.

As soon as either side in a lawsuit becomes aware of an actual or potential legal action, these relevant parties have a responsibility, called a litigation hold, to preserve any evidence that may be potentially related to the lawsuit.

First party spoliation claims are those claims for destruction or alteration of evidence brought against parties to underlying litigation. Conversely, third party spoliation claims are those destruction or alteration of evidence claims against non-parties to underlying litigation. Moreover, most of these states generally hold that third party spoliator must have had a duty to preserve the evidence before liability can attach.

The majority of states have preferred to remedy spoliation of evidence and the resulting damage to a party’s case or defense, through sanctions or by giving adverse inference instructions to juries. Sanctions can include the dismissal of claims or defenses, preclusion of evidence, and the granting of summary judgment for the innocent party.

Three Common Remedies Of Spoliation.

While a civil litigation court’s discretion is wide in imposing sanctions and remedies regarding the destruction, alteration or loss of evidence, there are three remedies generally used in a claim of spoliation.

1.  The jury is instructed that there is a presumption that the missing evidence would have harmed the spoliator. 

2.  Testimony about the evidence is excluded.

3.  The case is dismissed. 

Spoliation of Evidence and Legal Malpractice

malpractice.jpg

As shown above, the consequence of spoliation of evidence can be dire. Thus, if an attorney is responsible for or does not prevent the spoliation of evidence, her or she may be liable for legal malpractice. Malpractice could arise from the following situation:

  • The attorney loses the evidence’
  • The attorney has requested or authorizes destructive testing;
  • The attorney does not properly instruct the client or expert about the need to preserve the evidence; or
  • The attorney exacerbates the spoliation by not being candid with the opposing party and the court or attempts to conceal the spoliation.

Given the stakes involved, it is important to timely advise clients and experts regarding the need to preserve evidence and the consequences of spoliation.

Conclusion:

Spoliation cases seem to be on the rise. Although this is unfortunate, some outlines have begun to emerge in how to address the problem and how courts tend to deal with it. Creative use of discovery is an important factor in uncovering whether spoliation has taken place at all. It is also an important tool for making sure to establish the requisites of a spoliation problem, give careful thought to choosing an appropriate sanction. Fairness calls for nothing less.

The Solution: 

Digital4nx Group, Ltd. assists in the identification, collection, preservation and analysis of electronically stored information contained on computers, laptops, tablets, smartphones, USB media devices, and more…even that which is damaged or thought to be lost. With over a decade with proven subject matter experience in digital forensic investigations and ediscovery services, we can provide assistance, including onsite collection and analysis, finding deleted text messages and emails and their analysis, data recovery from archives, database and network forensics. We can even find evidence of “Scrubbing,” the advertent removal of files and the act of covering them with some other data.

Often we advise clients to get a digital forensics expert involved early to help develop a plan to prevent claims of spoliation. If you have experienced an occurrence requiring a forensic investigation, be sure to take measures necessary to preserve evidence by contacting us directly or visiting our website (www.digital4nxgroup.com).

Rob Kleeger

Digital4nx Group, Ltd., 8 South Main Street - Unit 70, Marlboro Township, NJ, 07746, United States

Rob Kleeger is the Founder and Managing Director of Digital4nx Group, a boutique firm which offers regional digital forensics services for plaintiffs and defendants in various civil and criminal legal matters. Digital4nx Group provides Digital Forensic Investigations, Electronic Discovery Consulting and Advisory Service, Incident Response to Data Breaches and Cyber Security services.

Real Time Analytics