Spoliation is not what happens when you leave milk out of the refrigerator too long. It’s also not what happens when you drop spaghetti sauce down your favourite white top. In simple terms, spoliation is the act of spoiling or damaging something. In a legal sense, it is the destruction, alteration or withholding of evidence.
I’m sure you’re a good law-abiding citizen who would never dream of deliberately making data ‘disappear’. But what if a critical email did go missing accidentally and it was needed as evidence? Surely the judge wouldn’t throw the book at you for losing one email? Wrong. In most cases, judges aren’t impressed when data goes missing – accidentally or deliberately – and probably won’t let you off with just a slap on the wrist.
So why won’t a judge show you the benefit of the doubt if you accidentally delete ESI (Electronically Stored Information)? Because it deprives your opponent of their best chance to win the case. Under the Federal Rules of Civil Procedure (FRCP) in the USA, companies are expected to be in complete control of their data and make it available for search in an eDiscovery request within weeks or even days. If your ESI storage system resembles a teenager’s bedroom when you face an eDiscovery request, expect the judge to show you little tolerance and possibly even rule in favour of your opponent before the trial has really begun.
Here’s just one example of a case where one party has spoliated evidence through incompetence rather than deliberately deleting ESI. In Naaco Materials v Lilly Group, The magistrate ruled Lilly Group was in breach of its duty to preserve evidence. The plaintiff’s technical expert found that Lilly had made no effort to preserve evidence; it didn’t inform employees of the legal hold, didn’t suspend its routine destruction of data and waited months before searching servers for ESI relevant to the case. You can read more case examples of spoliation here and here.
Your best chance to avoid being accused of spoliation is being prepared. If you wait until you receive an eDiscovery request before you track down and organise your ESI, you have left it too late. Be prepared with a document retention policy. The first thing you should do is familiarise yourself with your obligations regarding data storage under your respective local, state and federal laws. Armed with this information, you can then create a policy on what data should be stored, how long it needs to be stored and most importantly, where you data will be stored. To avoid being accused of spoliation, your scheduled deletion of data should be suspended when the threat of litigation is reasonably foreseeable.
An accusation of spoliation will likely see your data come under even greater scrutiny and could spoil your chance of winning the case. Make sure you have a solid document retention policy in place and your data is quickly accessible to avoid getting on the wrong side of the law.