Judge's gavel with view of city in background.


Spoliation—the alteration, destruction, or otherwise failure to preserve evidence, either intentionally or negligently, that is relevant to an ongoing or anticipated litigation—is an issue that courts have long struggled with. As spoliation has the potential to prevent a party from proving or defending a case, courts have implemented rules and sanctions to address the nature of the spoliation in question in an attempt to maintain a degree of fairness to the parties.

The party moving for spoliation sanctions has the burden of showing that (i) the party that had control over the evidence possessed an obligation to preserve it at the time of its destruction, (ii) the evidence was destroyed with a culpable state of mind, and (iii) the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense.

The duty to preserve evidence arises once litigation becomes reasonably anticipated, not after a litigation is formally commenced. Examples of when courts have found that a party should have reasonably anticipated litigation include where the party terminated an ongoing contract, got into a motor vehicle accident where others were taken away in ambulances, or was involved in a work-related accident.