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Spoliation of Evidence

Spoliation | How To Effectively Preserve Evidence

Jeffrey Wolff
Apr 22, 2021 3:20:28 PM

In this post, we'll discuss how legal professionals can avoid spoliation of evidence. When faced with litigation, spoliation is a legal professional's worst nightmare. After all, spoliation can lead to serious, case-ending sanctions. Even worse, in most cases, spoliation can be avoided with relative ease. If proper systems and protocols are in place, the risk of spoliation is negligible. In this article, we'll discuss spoliation and effective evidence preservation. You'll find some best practices and tips to avoid spoliation at the end. 

Contents: 

What is spoliation?
Spoliation Sanctions
Avoiding Spoliation of Evidence
Best practices to avoid spoliation of evidence
1. Understand when your duty to preserve begins
2. Ensure data preservation policies supersede data retention policies
3. Use plain language for Hold Notices and update custodians regularly
4. Make use of templates and automation if you can
5. Don't forget about metadata
6. Use Information Governance to avoid starting from scratch
Conclusion: Tools, policies, mistakes, and malice 

What is spoliation? 

During a legal dispute, evidence is essential to prove your case. It should be no surprise, then, that interfering with evidence is one of the big no-nos of the legal world. In the context of civil procedure, spoliation is the destruction or loss of evidence. In particular, spoliation occurs when evidence should have been preserved but hasn't. 

I've written on the subject of spoliation before. In that post, I focused on spoliation in a Legal Hold context. To be sure, avoiding potential spoliation is one of the major reasons why Legal Hold exists at all. At the same time, preventing spoliation isn't quite as simple as "Do Legal Hold". In the decade after the landmark Zubulake v. UBS Warburg case ended in 2005, spoliation sanctions increased by 271%. The peak for these sanctions seems to have been between the FRCP Amendments of 2006 and 2015. Since the 2015 Amendments, the amount of sanctions have been declining

The recent decline of spoliation-related sanctions is due to amendments to FRCP 37. The 2016 amendments attempted to curb undesired consequences of the 2006 version. In particular, the amendment adds a requirement for an 'intent to deprive'. This addition softens the blow for accidental failures to preserve. For a more detailed breakdown of the changes the 2016 Committee made to FRCP 37, click here

When it comes to Electronically Stored Information (ESI), spoliation takes several forms: 

  • Failure to preserve: evidence preservation obligations start early. FRCP 37 establishes evidence preservation should start when litigation is reasonably expected. If potential evidence is destroyed, that's spoliation.
  • Failure to disclose: withholding documents or ESI subject to disclosure. Withholding evidence that should be disclosed is an obvious form of spoliation.
  • Altering or fabricating evidence: civil litigation is an evidence-based affair. Tampering with evidence is obviously spoliation. It should be noted that this type of tampering is not dealt with by the FRCP. Alteration and fabrication of evidence fall under the Federal Rules of Evidence

For the purposes of this article, we'll limit ourselves to only the failure to preserve. 

Spoliation Sanctions 

Spoliation sanctions are serious. The oft-repeated potential sanction is the adverse inference or adverse inference jury instruction. The judge may also dismiss the action or enter a default judgement. As detailed in FCPR 37(e)(2), where the sanctions are listed, these sanctions are not handed out casually. The Rule specifies the ESI in question: 

  • Was part of the dataset a party should have preserved in anticipation of litigation;
  • Was not preserved because a party failed to take reasonable steps;
  • Cannot be restored through extra eDiscovery;
  • Was not preserved because one party acted with intent to deprive the other. 

The list makes it clear the courts want to avoid the heavier sanctions if possible. This makes sense considering civil litigation aims to find resolutions, not conclusions. Still, legal professionals are right to hope for the best but prepare for the worst. 

Avoiding Spoliation of Evidence 

Following the 2016 amendments to the FRCP 37, the risk of accidental spoliation has gone down. That does not mean no one needs to worry about spoliation anymore. The requirements of evidence preservation remain unchanged, as do the potential lesser sanctions. The new amendments do allow more leeway when it comes to failure to preserve. 

In essence, having a well-crafted playbook for evidence collection and production is key. Having a protocol for data preservation in place is important. Even more important is to follow that protocol when it applies. Having proper tools to ensure potential evidence is found and collected also matters. 

For a legal department involved in litigation, avoiding spoliation-related sanctions hinges on intent. As per the 2015 amendments, accidental spoliation is no longer necessarily sanctionable spoliation. This article includes an interesting and more detailed discussion on corporate intent. In general, when looking for spoliation-related information, keep an eye on the date. The 2015 FRCP amendments made some significant changes. Don't write off articles written between 2006 and 2015 completely, but take them with a grain of salt. 

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Best practices to avoid spoliation of evidence 

1. Understand when your duty to preserve begins 

When discussing when the duty to preserve starts, it is almost more important to start with when it does not. The duty to preserve does not begin when a complaint is filed. FRCP 37(e) deals with ESI that should have been stored in anticipation of litigation. As such, your duty to preserve begins when litigation can be reasonably anticipated. 

Reasonable expectation is, of course, intentionally broad. Robert S. Hoff provides some insight, giving some general guidelines. Regardless, the wording of FRCP 37(e) means 'reasonable anticipation' is determined case-by-case. What's important is legal professionals are be vigilant in this regard. Holding off the preservation of evidence until the complaint is filed risks spoliation. 

2. Ensure data preservation policies supersede data retention policies 

Never forget data retention policies are data deletion policies. When formulating data preservation policies, legal professionals need to be mindful of this. Make sure that the data retention policy the company follows respects data preservation. In the Zubulake case, a data retention policy deleted evidence while the case was ongoing. This led to the defendant being sanctioned. 

Making sure means writing policy the IT department is aware of and willing to follow. Furthermore, ensure custodians are aware of their data preservation responsibilities. Ideally, custodians would receive a message from IT alongside a hold notification. This message would formally suspend the data retention policy for data under hold. 

3. Use plain language for Hold Notices and update custodians regularly 

When sending out Hold Notices, ensure the instructions are written in plain English. For most custodians, a legal hold is completely new. As a result, they will not know exactly what to do or what's expected of them. A hold notice should be concise, and tell custodians what they need to do, when, and why. 

Once the hold is in place, make sure you update custodians on how things are going. Keeping custodians aware of proceedings will ensure their continued compliance for the hold. Having all parties on board and looped in reduces the risk of accidental spoliation. 

4. Make use of templates and automation if you can 

The importance of consistency cannot be overstated. The steps involved in a legal hold are very predictable, which means you can automate them. A reliable set of templates for notifications and reminders simplify the process. Automated reminders reminds custodians of their responsibility. Also, you can ensure they reaffirm their participation by acknowledging the reminder. 

If worst comes to worst, having a sturdy and well-kept Legal Hold process can be invaluable. In case evidence is lost, that process can help show the court spoliation was in spite of best efforts. As per the 2015 amendments to the FRCP, Rule 37 was amended to make allowances for inadvertency. Sanctions can be avoided if it can be shown spoliation happened by accident, not design. 

5. Don't forget about metadata 

When it comes to evidence, the chain of custody is key. When it comes to ESI, that means not only the content of the document in question but the metadata as well. Metadata is the data stored about the data. For a piece of ESI to count as evidence, both the information in it and the metadata must be accurate. 

Metadata spoliation can call into question the authenticity of the evidence presented. As a result, a minor copying error can cause key evidence to be inadmissible. To avoid such issues, both IT and Legal must use the right tools and techniques during collection. 

6. Use Information Governance to avoid starting from scratch 

Knowing when to start a legal hold process is very important, which is why it was the first point on this list. An information governance policy can save a lot of time in the initial stages of the process. 

One of the main causes for inadvertent spoliation is haste. A civil litigation works with tight deadlines. That means Legal has very little time to identify, collect and produce evidence. Simply put, the more prepared you are to start the collection process, the less likely you are to run into issues. Having an active information governance policy helps save precious time during the process. 

Conclusion – Tools, policies, mistakes, and malice 

It's clear that spoliation of evidence is a concern for many legal professionals. For good reason: the thought of a single mistake mucking up an entire case is scary. 

At the same time, it's important to keep things in perspective. Many of the spoliation-related articles written between 2006 and 2015 are out of date. The 2015 amendments to the FRCP made some important changes to the spoliation rules. The changes to Rule 37 came in response to concerns expressed by corporate counsel. Some of the articles written in the heyday of spoliation, though accurate in spirit, miss the mark in tone. 

Nowadays, there are a few more ways of avoiding spoliation sanctions than in 2006-2015. That is, the ability to show spoliation followed mistake, not malice. To make that argument stick, the right policies and tools need to be in place. No jury will take the argument that a ramshackle operation failed on accident. 

Those tools and policies not only reduce the likelihood of spoliation happening. They also provide cover in case spoliation happens in spite of them. To read more on the subject, see our posts on spoliation and information governance. To learn more about how ZyLAB can help you avoid spoliation sanctions, don't hesitate to reach out