The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.
The doctrines governing how courts respond to spoliation are well established. But these venerable rules were mostly devised for a discovery process that involved the production of paper documents. The information revolution that accompanied the dramatic expansion of computers to produce and store every kind of document forever transformed the discovery process. As computer use increased, the volume of information produced, stored, and made readily available in discovery has improved exponentially. Part of the information revolution also included the development of systems for the routine destruction of stored data. As data destruction became a necessary part of managing any form of digitized information, the rules governing spoliation had to change. This Article examines the continuing effort by the drafters of the Federal Rules and the courts to determine how to regulate document destruction in the digital age.
Roni A. Elias, Experience, Not Logic: Adapting Spoliation Doctrine to the Brave New World of Digital Documents, 49 Suffolk U. L. Rev. 203 (2016).