Avoiding Spoliation: How Not to Lose Your Case Through Evidence Destruction
In litigation, facts win cases — but only if the evidence still exists.
Courts take evidence preservation seriously. When a party destroys, alters, or fails to preserve relevant evidence, the result can be devastating: monetary sanctions, exclusion of defenses, adverse jury instructions, or even outright dismissal of claims.
This article explains what spoliation is, when the duty to preserve evidence begins, and how businesses and individuals can avoid losing a case before it even reaches trial.
What Is Spoliation of Evidence?
Spoliation occurs when evidence that is relevant to current or anticipated litigation is:
Destroyed
Altered
Lost
Overwritten
Or not properly preserved
This applies to both physical and electronic evidence, including:
Emails and text messages
Slack, Teams, and other chat platforms
Documents and spreadsheets
CCTV or surveillance footage
Voicemails
Metadata
Mobile devices and laptops
Importantly, spoliation does not require bad faith. Even negligent destruction can trigger serious consequences.
When Does the Duty to Preserve Evidence Begin?
A common mistake is assuming that evidence only needs to be preserved after a lawsuit is filed. That is wrong.
The duty to preserve evidence arises when litigation is reasonably anticipated, such as when:
A demand letter is received
A dispute escalates beyond routine business disagreement
An internal investigation reveals potential legal exposure
A regulatory inquiry begins
An incident occurs that is likely to result in a lawsuit
Once this duty attaches, routine deletion policies must be suspended for relevant materials.
Common Spoliation Mistakes That Lose Cases
1. Continuing Auto-Delete Policies
Many businesses use automatic deletion settings for emails, texts, or surveillance footage. Once litigation is anticipated, those policies must be paused for relevant data.
2. Failing to Preserve Employee Devices
Evidence often lives on personal phones, laptops, and cloud accounts. Employers can be sanctioned for failing to preserve data held by employees within their control.
3. “Cleaning Up” Files
Deleting drafts, reorganizing folders, or “tidying” records after a dispute arises can be interpreted as intentional destruction.
4. Overwriting Surveillance Footage
Security footage is frequently overwritten within days or weeks. Courts routinely sanction parties who fail to preserve video after an incident.
5. Ignoring Text Messages and Messaging Apps
Courts treat texts, WhatsApp messages, Slack chats, and similar platforms as discoverable evidence. Assuming they “don’t count” is a costly error.
Consequences of Spoliation
Courts have broad discretion to punish spoliation, including:
Adverse inference instructions (the jury is told to assume destroyed evidence was harmful)
Preclusion of evidence or defenses
Monetary sanctions and attorney’s fees
Striking pleadings
Default judgment or dismissal
In some cases, spoliation alone can decide the outcome — regardless of the merits.
How to Avoid Spoliation: Best Practices
1. Issue a Litigation Hold Immediately
A litigation hold (also called a legal hold) instructs relevant individuals to preserve all potentially relevant information and suspend deletion practices.
2. Identify Key Custodians
Determine who may possess relevant information — executives, employees, contractors, or third-party vendors.
3. Preserve Electronically Stored Information (ESI)
This includes emails, messaging apps, cloud storage, and device backups. Preservation should be forensic where appropriate, not selective.
4. Document Preservation Efforts
Courts look favorably on parties who can demonstrate a reasonable, documented preservation process — even if something is later lost inadvertently.
5. Involve Counsel Early
Early legal guidance helps define the scope of preservation and prevents over- or under-preserving data.
Why Early Legal Advice Matters
Spoliation issues often arise before a lawsuit is filed, when parties are least prepared and most likely to make irreversible mistakes.
An experienced litigation attorney can:
Assess when the duty to preserve has attached
Tailor a litigation hold to the specific dispute
Coordinate with IT or e-discovery vendors
Protect against unnecessary sanctions
Position your case for success from the outset
Conclusion
You don’t have to lose a case on the merits to lose it entirely.
Evidence destruction — intentional or not — can undermine even the strongest legal position. Businesses and individuals who act early, preserve diligently, and seek legal guidance put themselves in the best position to avoid spoliation and protect their rights.
Disclaimer
This article is provided for general informational purposes only and does not constitute legal advice. Reading this article does not create an attorney-client relationship. Evidence preservation obligations vary based on jurisdiction and the specific facts of a dispute. You should consult a qualified attorney for advice regarding your particular situation.
