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Litigation: Sanctions for spoliation of evidence

Understanding how courts determine the appropriate spoliation sanction to impose is essential

Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and can significantly impact a litigation. Understanding how courts determine the appropriate spoliation sanction to impose is essential when this issue arises.

Courts have two sources of authority for sanctioning spoliation of evidence. Under the rules of civil procedure, courts have broad discretion to impose a variety of sanctions against a party that fails to produce evidence in violation of the civil rules. The primary limitation on this authority is that the discovery rules apply only to acts of spoliation that occur during the pendency of a lawsuit or following a court order. Courts also rely upon their inherent power to control the administration of justice to sanction pre-litigation spoliation. This authority allows courts to preserve their independence and integrity, since the destruction of evidence inhibits a court’s ability to hear evidence and accurately determine the facts.

Second, courts may refuse to permit a spoliator to introduce expert, or other testimony, regarding either the missing or destroyed evidence as a sanction. Excluding expert or other testimony may result in summary judgment against the spoliator because, without that testimony, the party cannot prove its case.

Third, dismissal and default judgment are the harshest spoliation sanctions. Given their severity and the presumption that cases should be decided on the merits, these sanctions are rarely imposed. Courts generally employ the sanction of dismissal where a party demonstrates bad faith or prejudice so severe that no other remedy will suffice.

Contributing Author

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Margaret Koesel

Margaret M. Koesel is a partner in the Litigation, Labor and Employment Groups at Porter Wright Morris & Arthur LLP and is a Co-Author of...

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Contributing Author

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Tracey Turnbull

Tracey L. Turnbull is a partner in the Litigation Group at Porter Wright Morris & Arthur LLP and is a Co-Author of Spoliation of Evidence:...

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