Spoliation of Evidence: Sanctions, Remedies, and Preservation Letters

Spoliation of evidence is the destruction, alteration, or failure to preserve evidence relevant to pending or reasonably foreseeable litigation. Once a party knows or should know that litigation is reasonably anticipated, the duty to preserve relevant evidence attaches, and breach of that duty triggers sanctions ranging from monetary penalties to adverse-inference jury instructions to outright case-ending dismissal.

This guide covers when the duty to preserve attaches, the spoliation rule, the most common sanctions under Federal Rule of Civil Procedure 37(e), the role of preservation letters and litigation holds, and what to do when the opposing party has destroyed evidence. Read it alongside the motion to compel guide for related discovery enforcement.

The Duty to Preserve

The duty to preserve attaches when litigation is reasonably anticipated, not just when a complaint is filed. Triggering events include:

• Receiving a demand letter or threat of suit.
• Knowledge of an injury or incident that may lead to litigation.
• Government investigation or subpoena.
• Internal complaints (workplace, regulatory).
• Adversarial communications in a business dispute.

Once the duty attaches, the party must take reasonable steps to preserve relevant evidence: implement a litigation hold, suspend automatic deletion of emails and electronic records, preserve physical evidence in its current state, and instruct relevant employees to retain documents.

Federal Rule 37(e): Sanctions for ESI Spoliation

The 2015 amendments to FRCP 37(e) created a uniform federal standard for sanctioning spoliation of electronically stored information. Under Rule 37(e), if ESI that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:

• (e)(1): Upon finding prejudice to the other party, order measures no greater than necessary to cure the prejudice.
• (e)(2): Only upon finding that the party acted with intent to deprive the other party of the information's use in the litigation, the court may presume that the lost information was unfavorable, instruct the jury that it may or must presume the information was unfavorable, or dismiss the action or enter default judgment.

The intent-to-deprive standard for the most severe sanctions is high. Negligent loss of ESI is sanctionable under (e)(1) but cannot support an adverse-inference instruction or dismissal under (e)(2).

The Spoliation Rule

Notably, spoliation includes any action which attempts to hide or conceal evidence. Spoliation is condemned because it can destroy fairness and justice, increasing the risk of an erroneous decision on the merits of the underlying cause of action. Spoliation can be intentional (deliberate destruction or alteration), reckless (failure to implement basic preservation steps), or negligent (inadvertent loss due to insufficient preservation procedures). Sanctions scale with the level of culpability.

Preservation Letters

A spoliation letter, also known as a preservation letter, is a formal written notice sent by an attorney requesting that the recipient preserve certain evidence relevant to a legal claim. The letter:

• Identifies the dispute and the parties.
• Lists the categories of evidence that must be preserved.
• Demands that automatic deletion routines be suspended.
• Requests confirmation that a litigation hold has been implemented.
• Warns that failure to preserve will result in motions for sanctions.

Preservation letters establish that the recipient was on notice. A subsequent claim that "we didn't know" is implausible after a written preservation letter has been received and acknowledged.

Litigation Hold Procedures

Once notified of the duty to preserve, an organization should implement a written litigation hold:

1. Identify the scope of the hold (subjects, custodians, date ranges).
2. Notify all relevant employees of the hold and their preservation obligations.
3. Suspend automatic deletion of emails and electronic records for affected systems.
4. Preserve backup tapes and archives for the relevant period.
5. Document the hold's implementation and follow-up reminders.
6. Conduct periodic reminders to ensure ongoing compliance.

Failure to implement these procedures is a common factual basis for spoliation sanctions. Documented hold procedures provide a defense against allegations of bad faith.

Examples of Spoliation

Common spoliation scenarios:

• Deleting emails after receiving a preservation letter or filing of suit.
• Wiping a laptop assigned to a departing employee whose communications are at issue.
• Painting over a defective product before product-liability inspection.
• Destroying surveillance footage that captured the incident.
• Allowing routine document destruction to continue after the duty to preserve attached.
• Cleaning the accident scene before forensic examination.

Remedies and Sanctions

The intentional destruction or alteration of relevant evidence in existing or pending litigation is the core spoliation. The main remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would have been unfavorable to the spoliating party. Other remedies include:

• Adverse inference instruction telling the jury they may or must presume the lost evidence was unfavorable to the spoliating party.
• Evidentiary exclusion preventing the spoliating party from offering testimony about the destroyed evidence.
• Issue preclusion deeming specific facts established against the spoliating party.
• Monetary sanctions including attorney's fees incurred in addressing the spoliation.
• Default judgment or dismissal in extreme cases of intentional spoliation.

State-Court Variations

State law varies significantly. Some states recognize spoliation as an independent tort, allowing the prejudiced party to sue for damages. Other states limit remedies to procedural sanctions in the underlying case. The federal Rule 37(e) standard applies only to ESI in federal court; state law may impose stricter or looser standards on physical evidence and on non-ESI documents.

When You Need an Attorney

Spoliation disputes are factually intensive and procedurally complex. Whether you are pursuing sanctions or defending against allegations, the briefing requires careful application of Rule 37(e), case-specific facts, and applicable state law. Legal Tank's attorney-drafted sanctions service handles spoliation motions and preservation letters with full citations to controlling authority.

Related Civil Procedure Guides

• hearsay rule and exceptions
• expert witness disclosure under Rule 702
• attorney-client privilege scope
• burdens of proof in civil cases
• preponderance of the evidence standard

Frequently Asked Questions

What is the spoliation rule of evidence?

Notably, spoliation includes any action which attempts to hide or conceal evidence. Spoliation is condemned because it can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. The rule applies once a party knows or should know that litigation is reasonably anticipated, triggering a duty to preserve relevant evidence. Breach of the duty can result in monetary sanctions, evidentiary exclusion, adverse-inference jury instructions, or dismissal.

Is spoliation a tort or a sanction?

Most jurisdictions treat spoliation as a basis for sanctions within an existing case rather than as an independent tort. A few states (Alabama, Connecticut, Florida, Indiana, New Jersey, New Mexico) recognize a spoliation tort in narrow circumstances against third parties. The federal courts and most states rely on inherent authority and FRCP 37(e) to sanction spoliation by adverse inference, evidentiary preclusion, monetary penalty, or in extreme cases default judgment.

What is an example of spoliation?

Common examples include deleting emails after receiving a preservation letter or notice of suit, wiping a laptop assigned to a key employee whose communications are at issue, painting over a defective product before inspection, destroying surveillance footage that captured the incident, and allowing routine document destruction to continue after the duty to preserve attached. The pattern is a party with a duty to preserve evidence taking action that destroys or alters relevant materials.

What is the remedy for spoliation?

The intentional destruction or alteration of relevant evidence in existing or pending litigation triggers sanctions. The main remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would have been unfavorable to the spoliating party. Other remedies include adverse inference instructions, evidentiary exclusion, monetary sanctions including attorney's fees, issue preclusion, and in extreme cases default judgment or dismissal of the case.