Introduction

• Library: Spoliation of Evidence: Sanctions & Remedies for Destruction of Evidence in Civil Litigation (ABA) (2013 Ed.)

"Contra spoliatorem omnia praesumuntur."

More than 275 years ago, in Armory v. Delamirie, an English court confronted one of the first recorded instances of spoliation of evidence.¹ In that case, a chimney sweep found a jeweled ring and took it to a jeweler for appraisal. When the jeweler returned the ring without the stone, the chimney sweep brought an action to recover the gem. Since the jeweler had retained the stone, the judge instructed the jury to "presume the strongest against the [jeweler] and make the value of the best jewels the measure of . . . damages." The court announced the now familiar axiom that a party should be held accountable for improperly destroying evidence: "Contra spoliatorem omnia praesumuntur" i.e., "All things are presumed against a spoliator."² In the nearly three centuries since Armory, courts and practitioners have wrestled with spoliation of evidence in the context of civil litigation.³

In 1940, the Fifth Circuit highlighted the negativity associated with the word "spoliation," describing it as a "word with evil connotations, . . . [that] dictionaries make. . . synonymous with pillaging, plundering, and robbing."⁴

Spoliation is "hardly confined to blockbuster events. Documents that should be produced in response to a discovery request are regularly shredded, altered, or suppressed."⁵ An early study concluded that 50 percent of all litigators found spoliation to be either a frequent or regular problem.⁶ But "[i]t appears to be as difficult to find a commentator who thinks evidence tampering is under control, as it is to find systematic empirical evidence confirming its ubiquity,"⁷ since "[c]onclusive statistics that prove the frequency of spoliation in the civil litigation context are difficult to obtain."⁸

Evidence tampering⁹ has created headlines suggesting the production of evidence "is a game whose rules can be broken."¹⁰ Discussing its impact in civil lawsuits, a regular commentator on litigation observed, "Spoliation, in case you haven't heard, is the newest battleground of contemporary litigation, now a continuing sideshow, if not the main event, in courtrooms across the country."¹¹

Commenting on this trend, a district court observed that sanctions motions addressing claimed spoliation of evidence are serious business since, in addition to being time-consuming and costly, they nearly always "implicate professional and personal reputations." Beyond that,

When proven, the spoliation of evidence can materially affect the disposition of the case on the merits and must be remedied. When it is not, the sting of the allegations remains, along with the lost time and unnecessary expenses attendant to litigating what turns out to have been a costly diversion. If such motions become part of the routine of litigation. . . , lawyers may begin to provide legal advice based less on a good faith sense of factual and legal proportionality regarding preservation obligations, and more out of a fear of hefty judicial sanctions if their judgment later turns out to have been incorrect when viewed with the benefit of hindsight.¹²

The court expressed...