Spoliation and electronically stored information

Business disputes can get ugly, and it’s not uncommon for a real conflict to boil over and turn into litigation. 

In today’s world, virtually every business lawsuit involves some form of electronic data. In fact, a case may be won or lost based on what’s found in emails or text messages, on online work platforms and more, whether that’s surface information or metadata that’s hidden.

What happens, however, if some of that data gets destroyed or simply goes missing?

Every company must preserve evidence that may need in disputes

There’s a reason that most modern companies take such pains to backup their electronic systems and have clear procedures regarding them. Any situation in which someone doesn’t preserve evidence relevant to civil litigation is referred to as “spoliation.”

Spoliated evidence can include physical objects and photos. What constitutes spoliated electronically stored information varies. Spoliation, or destruction of this information, can occur through a deliberate act, which is usually an attempt to hide something one party doesn’t want the other party to see. The spoliation of electronic data may result from inaction or an accident. Someone may forget or neglect to make backups, accidentally press the “delete” key or access to a virtual dropbox may expire.

What happens if electronic data relevant to a claim is destroyed?

Negligent destruction of the material is still spoliation. The court will often tell the jury in a case that they must presume that the spoliated evidence was somehow disadvantageous to the party that destroyed it. The court may conclude that the spoliation is an example of “consciousness of guilt” and impose fines for it.

Spoliation is just one of the many concerns you may face if you’re on either end of a business lawsuit. The more you understand your obligations, the less likely you are to make a critical mistake that will cost you.