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GPSolo Magazine

GPSolo May/June 2024: The Changing Face of Evidence

Spoliation of Evidence: The Kiss of Death for Your Client’s Case

Michael Pezzulli


  • One of the most pernicious forms of misconduct for trial lawyers is to knowingly assist, permit, or induce a client or members of their firm to alter, conceal, or destroy evidence.
  • If evidence has been destroyed, the jury will inevitably conclude the worst as they strive to achieve certainty in the facts of the case.
  • A preservation of evidence letter should be sent to clients early in the case. This is particularly true when electronically stored information (ESI) is involved.
Spoliation of Evidence: The Kiss of Death for Your Client’s Case
Peter Dazeley via Getty Images

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Trial lawyers know that misconduct comes in many forms. One of the most pernicious forms of misconduct for trial lawyers is to knowingly assist, permit, or induce a client or members of their firm to alter, conceal, or destroy evidence, also known as spoliation.

Refraining from the spoliation of evidence is as simple as following your moral compass: If you know the conduct is morally wrong, don’t do it. Not only is the spoliation of evidence prejudicial to the administration of justice, but it is also, as will be demonstrated below, truly the kiss of death for your client’s case.

History, Case Law, and the Federal Rules of Civil Procedure

The legal definition of spoliation can be found in the ruling West v. Goodyear Tire Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999): “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

The concept of punishment for the spoliation of evidence has been in our judicial system for more than 300 years.

“Beginning in 1722, courts have allowed juries to infer that destroyed evidence would have a negative impact on the destroying party’s case” (Carole S. Gailor, In-Depth Examination of the Law Regarding Spoliation in State and Federal Courts, 23 J. Am. Acad. Matrim. L. 71, 80 (2010)). “Since the early seventeenth century, the legal maxim omnia praesumuntur contra spoliatorum (all things are presumed against a wrongdoer) has expressed a rule that allows the fact finder to draw an unfavorable inference against a litigant who has destroyed documents relevant to a legal dispute” (Lawrence Solum & Stephen Marzen, Truth and Uncertainty: Legal Control of the Destruction of Evidence, 36 Emory L.J. 1085, 1087 (1987) (footnotes omitted)).

“For a finding of spoliation, a party must show that ‘(1) the party with control over the evidence had an obligation to preserve it at the time of destruction; (2) the evidence was destroyed with a “culpable state of mind”; and (3) the evidence was relevant to the party’s claim or defense’” (In re Hitachi Television Optical Block Cases, No. 08cv1746 DMS (NLS) 2011 WL 3563781, at *5 (S.D. Cal. Aug. 12, 2011) (quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003)); see also United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (willful spoliation occurs when a party destroys evidence after being given notice that documents were potentially relevant to the litigation before they were destroyed)). Once spoliation is shown, the guilty party has the burden of demonstrating that no prejudice resulted from the spoliation (In re Hitachi Television Optical Block Cases, 2011 WL 3563781, at *6 (quoting Hynix Semiconductor Inc. v. Rambus, Inc., 591 F. Supp. 2d 1038, 1060 (N.D. Cal. 2006) (internal citations omitted), overturned on other grounds)). “Prejudice is determined by looking at whether the spoliating party’s actions impaired the non-spoliating party’s ability to go to trial, threatened to interfere with the rightful decision of the case, or forced the non-spoiling party to rely on incomplete and spotty evidence” (In re Hitachi Television Optical Block Cases, 2011 WL 3563781, at *6 (citing Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006)); see also Nutrition Distrib., LLC v. PEP Rsch., LLC, No. 16CV2328-WQH-BLM, 2018 WL 3769162, at *16 (S.D. Cal. 2018)).

Rule 37(e) of the Federal Rules of Civil Procedure provides the remedy for the destruction of electronically stored information (ESI):

(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation 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:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e). See also Thomas Y. Allman, Dealing with Prejudice: How Amended Rule 37(e) Has Refocused ESI Spoliation Measures, 26 Rich. J.L. & Tech. 2 (2020).

Before determining whether sanctions are appropriate, the court must first determine whether the following threshold requirements of Rule 37(e) have been satisfied: (1) that relevant ESI existed; (2) that the ESI should have been preserved in anticipation of litigation; (3) that the allegedly spoliating party did not take reasonable steps to preserve the ESI; and (4) that the ESI cannot be entirely restored or replaced (see Lokai Holdings LLC v. Twin Tiger USA LLC, No. 15-cv-9363, 2018 WL 1512055, at *9 (S.D.N.Y. Mar. 12, 2018)).

The “party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim by a preponderance of the evidence” (Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 580 (S.D.N.Y. 2017); see, e.g., Castro v. Smith, No. 16-cv-8147, 2023 WL 5371311, at *7–8 (S.D.N.Y. Aug. 22, 2023) (determining that plaintiff had “met his burden of proving by a preponderance of the evidence that [a] video existed”), Herbert v. Lynch, 7:22-CV-6303(NSR)(VR), 2024 WL 20942, at *4 (S.D.N.Y., Jan. 2, 2024)).

With respect to case summaries applying Rule 37(e), see Thomas Y. Allman, Amended Rule 37(e): Case Summaries 1 (May 27, 2017).

Upon a Finding of Spoliation, What Do Courts Do about It?

Should the court determine that spoliation has occurred, the court has the discretion to impose a variety of creative punitive measures.

In a death case in the Northern District of Texas involving an 18-wheeler truck that struck and killed a pedestrian, the court found that the defendants had destroyed evidence, and the federal court made the following findings:

When considered in the context of all of Defendants’ other questionable post-accident conduct, the evidence is clear and convincing that the Defendants, purposefully, over a sustained period of time, engaged in a concerted effort to hide and destroy evidence. . . . In sum, the totality of the circumstantial evidence surrounding the Defendants’ actions, as recounted in detail throughout this opinion would permit a reasonable fact finder to conclude that the missing evidence would have aided Plaintiff in proving her claims.

Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 802–03 (N.D. Tex. 2011).

The strategy and evidence outlined in the opinion are well worth reading for those who believe that they have a sufficient basis for the filing of a spoliation claim against their opposing party. The court made the following ruling:

The Court finds that Defendants Knight Transportation and George Muthee [Knight’s driver] spoliated evidence. Accordingly, Plaintiff’s Motion for Sanctions is GRANTED, and the Court STRIKES Defendants’ pleadings and defenses to liability. The Court also DIRECTS Plaintiff, if she so chooses, to file an Amended Complaint that only adds a claim for punitive damages. . . .

Id. at 805–06.

The ruling by the court was effectively the kiss of death. The defendants lost any ability to contest liability, and the damages evidence was horrific. When Knight Transportation’s 18-wheeler struck Don Ashton, there was clear evidence that he was alive when struck and that the impact literally split his body into multiple parts. With no ability to contest liability, the defendant would have been forced to sit at trial as the damages evidence came in describing the horrific killing of Don Ashton and the flight of Knight Transportation driver George Muthee from the scene and subsequent destruction of evidence. As an aside, the destruction of evidence was overwhelming. A review of the Ashton opinion will show the details of deceit and interference conducted by Knight Transportation, as found by the court. The court’s solution to the spoliation was creative and resourceful.

Recently, a state district court in Dallas, in ruling on a motion for spoliation of evidence involving the destruction of a videotape that would have shown how badly a ten-month-old child had been abused by a day care worker, found as follows:

The Court therefore does not find a sufficient showing of bad faith on the part of the day care center to justify a spoliation sanction for that reason alone. However, a Court may also submit a spoliation instruction when there is negligent handling of the evidence causing the non-spoliating party to be irreparably deprived of any meaningful ability to present a claim or defense. Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917 (Tex. 2015). The Court finds that (a) the day care center was negligent in failing to preserve the tape when it was under an obligation to do so and (b) the absence of the tape deprives Ms. Taylor of a meaningful ability to prove her case. Therefore, as a matter of law, spoliation has occurred.

Order on Plaintiff’s Motion for Spoliation Sanctions, etc., Taylor v. VAMS, LLC, d/b/a Joyous Montessori, et al., Cause No. 401-00391-2019, opinion issued Feb. 6, 2024, at p. 4 (emphasis added).

The court made the following ruling:

IT IS THEREFORE ORDERED that Plaintiff’s Motion for Spoliation Sanctions is GRANTED to the extent that testimony at trial will be permitted regarding the circumstances of the existence and loss of the video tape in issue but is DENIED with respect to all other relief requested.

Id. at 5.

The significance of this ruling is that the plaintiff was permitted to elicit testimony that a request for the videotape was made on a Friday afternoon, that the institution refused this request but claimed the tape would be available on the following Monday, and that the tape was gone when the parent requested the tape that Monday.

As can be seen from the two examples above, there is an entire spectrum of penalties that can be imposed by the court once a finding of spoliation has occurred.

In both instances, evidence was required to establish the nature and extent of spoliation. It is not productive to go to court and simply make an unsubstantiated claim of spoliation. That is a waste of time.

Additionally, the court can instruct the jury that evidence has been destroyed. The Texas Pattern Jury Charge on Spoliation Instruction states:

[Name of spoliating party] [destroyed/failed to preserve/destroyed or failed to preserve] [describe evidence]. You [must/may] consider that this evidence would have been unfavorable to [name of spoliating party] on the issue of [describe issue(s) to which evidence would have been relevant].

PJC 100.14 Instruction on Spoliation, Admonitory Instructions, Texas Pattern Jury Charges, Business, Consumer, Insurance & Employment (2020) at 33.

In the federal courts, the instructions are similar:


[Party] contends that [Other Party] at one time possessed [describe evidence allegedly destroyed]. However, [Other Party] contends that [evidence never existed, evidence was not in its possession, evidence was not destroyed, loss of evidence was accidental, etc.].

You may assume that such evidence would have been unfavorable to [Other Party] only if you find by a preponderance of the evidence that:

(1) [Other Party] intentionally [destroyed the evidence] [caused the evidence to be destroyed]; and

(2) [Other Party] [destroyed the evidence] [caused the evidence to be destroyed] in bad faith.

Federal Civil Jury Instructions of the Seventh Circuit, Prepared by the Committee on Pattern Civil Jury Instructions of the Seventh Circuit, 1.20 at p. 27.

Spoliation: The Kiss of Death

The above begs the question of why such an instruction could well be the “kiss of death” to the spoliating party. The answer to that question involves diving into the psychology of the jury. If the evidence has been destroyed and an instruction is given that the jury can assume the destroyed evidence would have been unfavorable to the spoliating party, then the jury will inevitably conclude the worst as they strive to achieve certainty in the facts of the case.

As noted by psychologist Bryan E. Robinson,

If you’re like most people, you hate life’s inevitable uncertainties, which can cause tremendous anxiety. . . . Why? Because uncertainty equals danger. . . . Due to its disdain for uncertainty, your brain makes up all sorts of untested stories hundreds of times a day. A friend doesn’t respond to a text, a colleague wears a frown and uses a certain tone of voice, or you’re not included on the guest list. Chances are, you assume the worst, over-personalize the event, and jump to conclusions. (Your brain will do almost anything for the sake of certainty.)

Bryan E. Robinson, Why Uncertainty Freaks You Out, Psych. Today (Feb. 1, 2020).

Spoliation inevitably leads to the conclusion that what was destroyed was bad for the destroying party, and this is particularly true when you add the uncertainty of what was destroyed. The combination of an instruction on spoliation combined with the jury’s likely speculation that the evidence was harmful to the spoliating party is a bad conclusion for this party, no matter how you view it. It is what many experienced trial lawyers consider the kiss of death.

The Ethics of Spoliation of Evidence

There is little doubt that lawyers have an ethical obligation, separate from any duties foisted on their clients, to preserve evidence.

American Bar Association Model Rule of Professional Conduct Rule 3.4(a) provides that a lawyer shall not “[d]estroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.” The rule on its face is crystal clear.

For all intents and purposes, all states have adopted ABA Model Rule 3.4. For example, in my home state, Texas, Rule 3.04 of the Texas Disciplinary Rules of Professional Conduct provides that a lawyer shall not

unlawfully obstruct another party’s access to evidence; in anticipation of a dispute unlawfully alter, destroy or conceal a document or other material that a competent lawyer would believe has potential or actual evidentiary value; or counsel or assist another person to do any such act.

Comment 1 to Texas Rule 3.04 provides:

The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedures, and the like.

Comment 2 to Texas Rule 3.04 provides, in part:

Documents and other evidence are often essential to establish a claim or defense. The right of a party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions, including Texas, makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen.

Preservation of Evidence Letters

A preservation of evidence letter should be sent to clients early in the case. This is particularly true when ESI is involved. Below are portions of the standard preservation letter we use at my firm:

Electronically stored information (ESI) should be afforded the broadest possible definition and includes (by way of example and not as an exclusive list) potentially relevant information electronically, magnetically, or optically stored as:

  • Digital communications: email, voice mail, instant messaging, social media posts, direct messages on platforms such as X (formerly Twitter), Instagram, LinkedIn, and Slack, and collaborative communications on platforms such as Microsoft Teams and Zoom.
  • Email server storage: cloud-based services such as Google Workspace (formerly G Suite) and Microsoft 365 (formerly Office 365) and email storage.
  • Word processed documents: documents in Word or WordPerfect, Google Docs, Word as part of Microsoft 365, and collaborative document platforms such as Notion, Quip, and Drafts.
  • Spreadsheets: sheets in Excel and Lotus 1-2-3 as well as Google Sheets, Excel as part of Microsoft 365, Airtable, and Smartsheet.
  • Accounting application data: data in QuickBooks, Money, Xero, FreshBooks, and cloud versions of QuickBooks.
  • Image and facsimile files: PDF, TIFF, JPG, and GIF image files, as well as high-efficiency image formats (HEIC, WEBP) and cloud-based image storage solutions such as Adobe Creative Cloud and Google Photos.
  • Sound recordings: WAV and MP3 files, streaming formats and platforms such as Spotify and Apple Music, and podcast formats.
  • Video and animation: AVI and MOV files, Adobe After Effects files, and platforms for creation and sharing, such as TikTok.
  • Databases: Access, Oracle, and SQL Server databases, SAP and NoSQL databases (e.g., MongoDB, Firebase), and cloud database services (e.g., Amazon RDS, Google Cloud SQL).
  • Contact and relationship management data: Outlook, ACT!, and cloud-based customer relationship management solutions such as Salesforce, HubSpot, and Zoho.
  • Calendar and diary application data: Outlook PST files, Yahoo data, blog tools including cloud-based platforms such as Google Calendar and Outlook as part of Microsoft 365, and project management tools with calendar features such as Asana and Trello.
  • Online access data: temporary Internet files, browsing history, cookies (including browser-synced data across devices), VPN usage logs, and encrypted storage solutions such as NordVPN and ExpressVPN.
  • Presentations: PowerPoint and Corel Presentations files as well as cloud-based and collaborative platforms such as Google Slides, PowerPoint as part of Microsoft 365, Prezi, and Canva presentations.

The full extent of a preservation letter goes beyond the scope of this article, but the above is a starting point.

Avoid Exposure

Spoliation of evidence creates tricky waters to navigate, generating exposure to both the client and the attorney. If a client’s case involves critical information that you must ensure is protected, then a preservation of evidence letter is imperative and should be issued to the client as soon as possible.