What Is Digital Spoliation, and How Can It Be Prevented?
Preservation of digital data and evidence is a crucial component of the e-Discovery process, involving the issuance of litigation holds to prevent the destruction of certain electronically stored information (ESI) and materials relevant to a case. It protects lawyers, their firms, and clients against claims of impropriety.
However — by way of negligence or intentional obstruction — preservation isn’t always achieved, and once-admissible digital activity, files, and metadata can be destroyed even before the discovery process begins. A lack of expertise in the medium and the proliferation of digital information in the modern era has only bolstered the risk of digital spoliation. The matter of compromised data pertinent to a case, whether calculated or inadvertent, is referred to as digital spoliation. Here’s what you need to know about digital spoliation — and how forensic experts are critical in preventing it.
A Closer Look at Digital Spoliation
Digital spoliation is typically associated with the destruction of files and electronic data that could be used in a legal matter. However, not all instances of digital spoliation involve someone fervently deleting emails in attempts to vindicate or distance themselves from a scandal; in fact, there may be no malicious intent at all. Client or legal counsel can accidentally destroy evidence that could affect the outcome of their case. Digital spoliation isn’t exclusive to deleted data, either. ESI that’s changed in any way, withheld from the opposing counsel, or hidden could result in sanctions such as ‘failure to produce.’
Ramifications of Digital Spoliation
Defense and corporate counsel are most likely at risk if there’s evidence of willful destruction. Although, even if spoliation is negligent, a trial judge may enact a personal sanction. As for businesses, sanctions can range from monetary fines to default judgment.
Typically, harsher sanctions are reserved for cases in which the defendant has acted in bad faith — which can be incurred from particularly negligent conduct. Severe sanctions, including entry of default judgment or even criminal punishment, often surface for willful destruction of evidence. For purely negligent destruction of evidence, sanctions can include an adverse inference instruction to the jury. Some states recognize tort remedies for digital spoliation.
How Can Digital Spoliation Be Prevented?
The best way to prevent spoliation — digital or otherwise — is to have a comprehensive strategy for managing litigation holds, including a document protection and retention policy. With a reliable system in place, you’re less likely to overlook something during the e-Discovery process.
Legal counsel should emphasize to clients the importance of preserving all potentially relevant information, including content from social media, in its original form. Altered or deleted files or documents from laptops, mobile devices, or any other electronic device can be considered destruction of evidence. Automated and manual data destruction processes must be suspended.
Partnering with the best e-Discovery experts in Philadelphia takes the guesswork out of identification, data collection, and preservation. For more information, contact Cornerstone Discovery today.