Understand the definition of spoliation under the Federal Rules of Civil Procedure. 

With respect to the Federal Rules of Civil Procedure (FRCP), spoliation is the loss or destruction of potentially relevant information that should have been preserved for a civil litigation matter.

However, that general definition is subject to some variation depending on the rules of a specific jurisdiction, as are the consequences for spoliation. For example, some jurisdictions only consider there to be spoliation if a party loses actual evidence, not just discoverable information.

Rule 37 of the FRCP specifies that for there to be spoliation, the following conditions must all apply:

  • a party must have had control over potentially relevant ESI;
  • the party must have been under a duty to preserve that ESI;
  • the ESI must have been lost, destroyed, modified, or altered;
  • the loss must be due to the party’s failure to take reasonable steps to preserve the ESI; and
  • the ESI must not be able to be restored, recovered, or replaced through additional discovery.

There are as many ways to spoliate ESI as there are types of ESI. A party might:

  • delete files, emails, messages, or other information
  • overwrite files
  • throw away a computer, tablet, phone, or other device
  • modify files
  • modify file metadata

A party can spoliate data intentionally or through negligence. Intentional spoliation denotes that the spoliating party lost ESI with the intent to deprive another party of that information. For example, a party could intentionally throw away an old computer, knowing that all its files would be lost in the process, without thinking through the consequences of that action as it affects litigation. To determine a party’s intent, courts generally look to the overall facts and circumstances surrounding the loss of information.

Why is spoliation so important? Accurate and complete information is critical to resolving issues in litigation. Without the ability to examine evidence and determine what actually happened, the fact finder cannot decide what to do with a claim. If important information is lost, the ability to correctly decide the case can be seriously impeded.

Therefore, the consequence or sanction for spoliating ESI depend on both the culpability of the at-fault party and the importance of the information in resolving the litigation. Under the FRCP, if a party spoliated evidence and prejudiced another party but did not intend to deprive that party of the information’s use in the litigation, the court can order measures that are “no greater than necessary to cure the prejudice.”

If the court finds that the spoliating party acted with the intent to deprive its opponent of information, the court can impose severe sanctions. Those include mandatory or permissive adverse inference jury instructions or, in the most egregious cases, dismissal of a claim or summary judgment for the non-spoliating party.

Glossary definition

Under the Federal Rules of Civil Procedure, spoliation is the loss or destruction of potentially relevant information that a party was under a duty to preserve for litigation. If information can be recovered, restored, or replaced, it is not lost and sanctions for spoliation are not available.