SPOLIATION--Intentional Destruction of Evidence

Spoliation, also known at the intentional destruction of evidence, has received more attention recently in the courts. This may be due in part to high profile litigation where smoking gun documents were shredded as well as the development of technology that allows the instant storage and destruction of massive amounts of e-mail communications and computer files. When a company receives notice of a claim or lawsuit, the preservation of certain items should be considered with in-house or outside counsel.  Specifically, e-mails and computer files that concern the claims should be retained. Employees who have the ability to delete or purge such files should be notified so that accidental destruction or alteration does not occur. A company may also want to consider suspending routine document destruction policies for certain emails and files.

The danger of not taking steps to preserve evidence related to the claims includes accusations that the company intentionally destroyed evidence because it was harmful to the company with respect to the claims or litigation. If a court concludes that spoliation has occurred, it has wide discretion in awarding monetary sanctions and instructing the jury to conclude that the spoliated evidence was harmful to the company. Since the evidence no longer exists, it may difficult or impossible for the company to prove that the missing evidence was not harmful, and the court's instruction to the jury could make the difference between winning and losing a lawsuit.