What is Spoliation?
In legal terms, spoliation is the intentional destruction or alteration of evidence that may be pertinent to a legal proceeding. The spoliation of evidence may happen even before the legal proceeding begins. This is significant because it can lead to a violation of a party’s right to fair legal intervention. The value of opportunity to pursue legal action depends upon the availability of reliable evidence.
In most jurisdictions, spoliation is considered an "intentional tort" that is actionable when you have a "duty to preserve" evidence that is "relevant" to a legal action that is pending or could be anticipated if the need may arise. Thus, the tort of spoliation encompasses the deliberate destruction of relevant physical evidence as well as the dissemination of information to third parties and even the destruction or alteration of electronic documents and records.
The issue of whether the preservation of evidence is necessary in a given case is often posed as a question of whether a "duty" arises from a "foreseeable" need. If the duty arises , then the relevant evidence must be properly preserved. And, the failure to properly preserve it may lead to sanctions, including adverse legal action that is dictated by the severity of breach or willfulness of the spoliation.
Although there are varying interpretations and applications of law in different jurisdictions, particularly as to whether the spoliation must be "willful" or "negligent," the consensus is that the spoliation of evidence is serious enough to warrant sanctions. Thus, if there is a breach of the duty to preserve evidence, the spoliating party may be held liable for any costs that arise. The burden rests with your counsel to demonstrate that the spoliation caused the opposing party damages.
Forms of Spoliation
Spoliation can occur as a result of an intentional or deliberate act or as an accident. The two are generally referred to as different types of spoliation.
Intentional Spoliation
Intentional spoliation often occurs where it can be shown that a party and/or its counsel have knowingly altered, destroyed or hidden information or evidence that is relevant to the pending litigation. Intentional spoliation is often subject to litigation sanctions, including fines, warnings, and/or an adverse inference which may permit or even require fact-finders than the spoliator destroyed evidence in anticipation of litigation.
Accidental Spoliation
Every so often, mistakes or accidents do happen in the normal course of handling information, and that handling may lead to equipment failures, inadvertent deletion of information from hard drives, and other accidental errors and failures. This type of spoliation is generally considered the type of spoliation that falls into the category of simple errors, inadvertence or unintentional conversion of evidence into unusable form.
The Courts will find an "accident" if it can be shown that the spoliator acted reasonably and in good faith, and has not purposely concealed or destroyed relevant evidence.
Spoliation’s Role in Civil and Criminal Proceedings
In civil cases, spoliation can result in adverse inferences, exclusion of evidence, jury instructions, and more, depending on the extent of willful misconduct. Federal courts have the authority to impose severe sanctions on parties who have negligently or intentionally destroyed evidence relevant to ongoing litigation. In this regard, the U.S. Supreme Court has held that "[i]mposing sanctions in the form of an adverse inference jury instruction is appropriate when the evidence that is destroyed is relevant, and the party for spoliation had some notice that a lawsuit would be filed in the future."
As prevalent as it is under civil law, spoliation is similarly widespread in criminal cases as well. Unlike civil cases, spoliation in a criminal trial may expose the prosecutor to wrath from the public and lengthy appellate litigation.
The duty of the state to preserve evidence, and the resulting requirement that exculpatory evidence be turned over to the defense, has at times been considered so paramount that it entirely overcomes even the strong policy we have that "harsh consequences" should not attach to spoliation of evidence in criminal cases. Courts that consider the Spoliation of evidence in criminal litigation generally hold that such spoliation requires dismissal of the case only where the defendant can establish three things:
- (1) The State had control over the evidence,
- (2) The evidence was exculpatory, and
- (3) The defendant was prejudiced by the destruction of the evidence, such that there would be a denial of the right to a fair trial.
Without such an abuse of discretion, the court will not overturn a district court’s decision to impose sanctions based on discovery violations.
The Consequences of Spoliation – Spoliation Sanctions
The range of sanctions for spoliation is quite broad and often a gray area for judges who are tasked with determining just how far the spoliation has affected the proceedings and what the appropriate remedy would be. In the triggering case in this evolving area of the law, Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003), the plaintiff was suing the defendants for gender discrimination. During the course of discovery, it was revealed that defendant had lost certain emails that related to material issues in the lawsuit – double emails were put on top of each other and when deleted, did not go into a "deleted folder" like other computer files. U.S. Magistrate Judge Shira Scheindlin issued an opinion in which she held defendants, who had failed to properly preserve their documents at the initiation of the litigation, liable for spoliation and subject to sanctions. Ultimately, the U.S. Second Circuit Court of Appeals reversed the decision and permitted the defendants to fully defend themselves. The court determined that the Magistrate Judge had imposed a "minimal burden" on the defendants for their failure to act and therefore should not have resorted to a spoliation instruction against them.
In most of the well-established spoliation precedent the sanction rests with the defendant, whereas new cases are establishing new precedent on this issue. The recent case of Turner v. Hudson Transit Lines, Inc., No. 09-3006-CV (2d Cir. Sept. 27, 2012) involved lead plaintiff Nicole Turner ("Turner") and her co-plaintiff, Nicole Neves ("Neves"). Turner and Neves filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging violations of the Fair Labor Standards Act ("FLSA") and New Jersey wage and hour law, as well as other common law claims. While Turner did forward an EEOC "right-to-sue" letter to her attorney, Neves did not receive notice of the right-to-sue until after the statute of limitations had expired. Neves’ attorney contacted Turner’s attorney, who simply told him "case was dead . . . no purpose in amending claim to add names." Turner then filed a claim with the Federal District Court for the District of New Jersey on behalf of herself and Neves; however, she did not include Neves as a plaintiff until over a year after the statute of limitations had expired. As a result, Judge Shira Scheindlin held that Neves was a late claimant subject to dismissal by the court. The Second Circuit Court of Appeals reversed the Magistrate Court and held that the plaintiffs had established the "extraordinary circumstances" needed to toll the statute of limitations, and the plaintiffs’ claims would continue.
Currently, New York does not regulate a specific standard of preservation, only the general principle of "reasonable preservation . " In Fisher v. Pelican East Condomimium Owners Association, Inc., 760 So.2d 364 (La. App. 1st Cir. 2009), the Louisiana Court of Appeals affirmed the defendant’s Motion for Summary Judgment issued by the trial court on the grounds of spoliation. Raymond Fisher ("Fisher") suffered personal injuries when a piece of his patio deck broke during construction in November 2006. Fisher alleged the defendant, Pelican East Condomimium Association ("Pelican East"), had failed to preserve evidence and therefore dismissed Fisher’s suit. Specifically, the Pelican East had failed to preserve any photographs of the balcony; Pelican East’s agents had failed to obtain any photographs of the balcony during the repairs and renovations they conducted after the incident. The Court of Appeals affirmed the trial court and held that "a party binds itself to a particular strategy during the course of litigation . . . [and if] that party fails to follow the plan, it will be sanctioned." This case highlights the sanction that a party may suffer due to spoliation.
In Cannon v. Cherry Hill Township Police Department, 224 F.R.D. 586 (D.N.J. March 19, 2004), the plaintiff filed a retaliation and sexual harassment suit on the basis that the defendant, Cherry Hill Township, had imposed an injury leave which forced him to miss work for more than four months while the reason for the injury was under dispute.
The plaintiff claimed that the defendant had violated the Family Medical and Leave Act (FMLA) by declaring his condition to be a personal problem and being disciplinary in nature when there was no legal provision for such a declaration. The defendant had acknowledged that they had not saved many of the documents requested by the plaintiff, and had even destroyed documentation that the defendant was legally obligated to maintain. The defendant cited a standard 180-day policy, but wasn’t sure whether this policy for deleting documents was internal or external. The Court held that the plaintiff had established both bad faith and prejudice elements of the spoliation and "infer[ed] the existence of additional relevant evidence from [defendant’s] conduct and circumstances surrounding" the missing documents. While it did not prevent the defendant from wholly defending itself, the Court did instruct jury instructions on the spoliation, which favored the jury against the defendant.
It has been argued that others are to blame for the market push towards more stringent e-policies than within most corporations. However, a strong argument can be made that the market leaders who are higher in the chain of command and lead the organization set the tone for every organization below them. Leading by example to maintain a compliance culture is imperative.
Spoliation Prevention Techniques
Preventing spoliation of evidence begins with a sound information governance program. However, it is equally important that businesses and legal professionals adopt sound practices for avoiding spoliation and for minimizing its impact when it occurs.
The best protection against spoliation is to clearly communicate the intent to preserve the information to all custodians as soon as possible and to provide individual custodians with clear instructions on how to implement the preservation. An appropriate "litigation hold" notice should be sent to every custodian alerting him or her to foreseeably relevant information in his or her possession and directing the recipient both to refrain from purging, altering, or modifying the preserve information and to preserve it in its "Native Format." If may also be prudent to draft a "preservation of evidence policy" as part of the organization’s records management and data retention plan. The preservation policy should be a part of the legal hold process and should go beyond the simple cessation of routine episodic activities such as:
Many preventive actions are ineffective unless the custodian possesses the technical skill and know-how necessary to carry out the preservation order. Therefore, custodians should be provided with technical instructions and tools that will facilitate the preservation of the information. Such instructions should also address the preservation of all 3rd party cloud or Internet based services, data, and accounts. For example, customers, clients, employees and others may be using a commercial data archival service without the knowledge of the organization; if so, custodians should be provided with the name of the service and technical instructions to safeguard this data.
It is vital that custodians understand the purpose of the preservation notice and that the organization should be committed to protecting this information and maintaining its confidentiality. Also, custodians should be informed about the penalties and adverse consequences they may suffer if a failure to carry out the process results in spoliation. In particular, the organization can and may discipline, suspend, or dismiss a custodian who deletes, modifies or destroys relevant evidence.
Response to Allegations of Spoliation
When confronted with a claim of spoliation, it is essential that you investigate the facts surrounding the claim. If the evidence has truly been altered or destroyed, there are legal steps which can be taken to remediate the situation. However, if the claim is unfounded, you may face an uphill battle in order to defend yourself and/or your business.
If you investigate your case and determine that evidence has not been altered or destroyed and that it was never spoliated, the best way to defend against a claim of spoliation is with ready communication and by setting the record straight. You can start your defense by providing a letter for an attorney or a jurat displaying all evidence in question to opposing counsel. The letter should be clear and assertive , yet polite. Provide signed affidavits or sworn declarations from relevant corporate officers or custodians stating that no alteration or destruction was practiced upon the electronic information. A well-crafted motion or declaration can have a significant impact on a judge and may help to halt further spoliation claims. For this reason, it is important to provide opposing counsel with a written response and to consider retaining an attorney to draft and file a declaration or sworn statement.
Finally, when confronted with a spoliation claim, it is critical to consistently keep meticulous records of all of the evidence which you believe to be at issue. This may require that you create a calendar or timeline of events in order to track all email and/or document communications. In contrast, spoliation is almost always improperly brought when a party waits for months to respond to a "hold" email. If you receive a "hold" email, you should print the email out and keep it with other backup documentation.