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Litigation terms

Spoliation

Spoliation is the destruction, alteration, or failure to preserve evidence that a party knew or should have known was relevant to litigation — sanctionable conduct that can cost a case regardless of its merits.

Updated

The duty to preserve attaches when litigation is reasonably anticipated — often well before a complaint is filed. From that moment, deleting the emails, wiping the phone, releasing the vehicle for salvage, or letting routine auto-deletion run all become spoliation exposure.

Why it matters in practice

Remedies scale with culpability. For electronically stored information, Federal Rule of Civil Procedure 37(e) supplies the framework: curative measures where a party is prejudiced by lost ESI that should have been preserved, and the severe sanctions — adverse-inference instructions, claim dismissal, default — reserved for intentional deprivation. An adverse inference is frequently fatal in front of a jury: the judge tells them they may assume the destroyed evidence was unfavorable.

Proving spoliation is records work. The tell is the shape of a production: a custodian whose mailbox goes quiet for the critical month, a document-retention policy that “ran” only after the demand letter arrived, a referenced attachment that never appears. The strongest motions reconstruct what should have existed from what did survive.

In the fact record

That reconstruction is coverage analysis — comparing the produced record against the expected one. FactMarshal’s gap view is built for exactly this: expected-but-absent documents, ranked, each with the reasoning behind the expectation, ready to become a preservation question.