Extract from David Pemberton’s article “Digital Spoliation of Evidence: Risks, Rules, and Prevention”
The preservation of evidence is a foundational requirement in litigation, guaranteeing all parties equal access to the information necessary to reach a fair and just determination. Today, the vast majority of discoverable evidence exists in the form of electronically stored information, which is naturally more fragile than its physical counterpart. That’s why a successful ediscovery strategy should include mastering the technical and legal nuances of digital spoliation.
Key Takeaways for Legal Teams:
- • Digital spoliation happens when ESI is lost, altered, or destroyed after the duty to preserve has been triggered.
- • Courts may impose sanctions if relevant or potentially relevant ESI is spoliated.
- • Legal holds are critical for preventing the loss of ESI.
- • Maintaining well-documented processes strengthens defensibility during preservation challenges, and can demonstrate to the court that any spoliation was inadvertent, thereby avoiding severe sanctions.
