Extract from Jeffrey Wolff’s article “Spoliation | How To Effectively Preserve Evidence”
In this post, we’ll discuss how legal professionals can avoid spoliation of evidence. When faced with litigation, spoliation is a legal professional’s worst nightmare. After all, spoliation can lead to serious, case-ending sanctions. Even worse, in most cases, spoliation can be avoided with relative ease. If proper systems and protocols are in place, the risk of spoliation is negligible. In this article, we’ll discuss spoliation and effective evidence preservation. You’ll find some best practices and tips to avoid spoliation at the end.
What is spoliation?
During a legal dispute, evidence is essential to prove your case. It should be no surprise, then, that interfering with evidence is one of the big no-nos of the legal world. In the context of civil procedure, spoliation is the destruction or loss of evidence. In particular, spoliation occurs when evidence should have been preserved but hasn’t.
I’ve written on the subject of spoliation before. In that post, I focused on spoliation in a Legal Hold context. To be sure, avoiding potential spoliation is one of the major reasons why Legal Hold exists at all. At the same time, preventing spoliation isn’t quite as simple as “Do Legal Hold”. In the decade after the landmark Zubulake v. UBS Warburg case ended in 2005, spoliation sanctions increased by 271%. The peak for these sanctions seems to have been between the FRCP Amendments of 2006 and 2015. Since the 2015 Amendments, the amount of sanctions have been declining.
