#13 The formalized changes to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil litigants into a compliance mode with respect to their proper retention and management of electronically stored information (ESI). Improper management of ESI can result in a finding of spoliation of evidence and the imposition of one or more sanctions including an adverse inference jury instructions, summary judgement, monetary fines, and other sanctions. In some cases, such as Qualcomm v Broadcom, attorneys can be brought before the bar and risk their livelihood.
The spoliation of evidence is the intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.[1] Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference.
A closely related concept to spoliation of evidence is tampering with evidence, which is usually the criminal-law version of the same concept, namely when a person alters, conceals, falsifies, or destroys evidence in an investigation by law enforcement or by a regulatory authority. An act of ruining or destroying evidence may sometimes be considered both spoliation of evidence and tampering with evidence. For example, when police destroy their own dashboard-camera footage or seize and destroy a citizen's video footage of an incident, it may constitute spoliation of evidence in a criminal case against the defendant if the footage tended to create reasonable doubt for the defendant, and also constitute tampering if the video were evidence of police misconduct in a criminal or regulatory investigation of the police's actions. The goal of spoliating or tampering with evidence is usually to cover up evidence that would be disfavorable to the doer in some way.
Spoliation of evidence is often important in e-discovery matters, as oftentimes records in electronic form such as SMS messages may be difficult to retrieve, preserve, or monitor.
Companies and organizations often attempt to avoid spoliation of evidence (or being accused or held liable therewith) by using a legal hold. Often, the legal departments of the company or organization will issue a prescribed order to the relevant employees to retain and preserve their discoverable materials (such as e-mails and documents).
Wikipedia.org
In other words, all that needs to be done is charge all of these people with spoliation of evidence and then the burden shifts to them to prove their innocence. |
...the former head of the IRS Exempt Unit. She is a past president of the Council on Governmental Ethics Laws and a member of the Massachussetts bar. She was held in contempt of Congress for her role in the IRS targeting of regime political enemies and refusing to testify. The dog ate her computer's hard drive with all her emails on it...