Sanctioning Spoliation of Evidence

by Ervin Cohen & Jessup LLP

Today’s Take:  Sanctions for the Automatic Deletion of Evidence by Computers

In my recent blog post entitled Preserving Evidence Through Demand Letters, we discussed how a demand letter can trigger the duty to preserve evidence, including electronically stored information (ESI).  In today’s take, we discuss the implications of data retention policies and the automatic deletion of evidence by computer systems.

Upon receiving a demand letter, the best practice is to place a litigation hold on any potential evidence that is relevant to the subject matter of pending litigation.  Many companies implement policies where data is often automatically “scrubbed” and overwritten, or backup volumes are recycled at periodic time intervals, at which point the data becomes irretrievably lost.  Therefore, after the duty to preserve triggers, a party must suspend its routine document retention/destruction policy as part of a litigation hold or face potential sanctions.

A court generally relies on its inherent authority to sanction parties in cases of discovery misconduct.  Sanctions for discovery violations follow in descending order of severity from: 1) dismissal, striking pleadings or entry of default judgment; to 2) adverse inference instruction; 3) evidentiary determinations and preclusion; and/or 4) fines, attorney’s fees and costs.  California provides subpoenaed parties with protection from sanctions in the case of good faith accidental destruction of evidence through the routine operation of an electronic information system.  (CCP §1985.8(l)(1)).  However, sub-part (2) of that section makes those protections inapplicable to an obligation to preserve discoverable information.  In other words, this provision appears to imply that although protection is available if subpoenaed evidence is accidentally deleted generally, it is not available if the data is accidentally deleted by a party who is under a duty to preserve evidence triggered by a demand letter.

The Federal Rules do not provide the same protections as California in the case of subpoenaed parties.  Instead, federal district courts generally determine the severity of sanctions for destruction of evidence under a culpable state of mind standard ranging from unintentional simple negligence, warranting the least severe penalties, to willful and intentional (gross) negligence, warranting the most severe penalties.

To avoid sanctions, the best practice is to cast a wide yet reasonable hold on ESI that may be relevant to pending litigation upon the receipt of a demand letter.  The hold may be limited in scope, which dramatically reduces costs by allowing a company to continue its normal IT operations while preventing the accidental destruction of relevant data.  The best course of action, therefore is to consult an attorney upon the receipt of a demand letter so that he/she can work with IT personnel to determine a course of action to prevent accidental destruction of evidence.

Today’s Taste:  The length of time you have to retain ESI depends on the course of the case.  Therefore, I recommend a bottle of Vietti Barbera d’Alba Scarrone 2009—this complex bright, dark red ages well and is best from 2013 through 2016.  Whether your case settles early or proceeds to trial, this 2009 Barbera will be ready to enjoy.  This is also my personal recommendation as I had the opportunity to enjoy lunch with the producers of Vietti while visiting Piedmont, Italy.

On Writs and Wine is the blog of ECJ’s Litigation Department, featuring our takes on a variety of litigation-related issues, plus a wine recommendation for your palate’s delight.  Your feedback—on both the takes and the wine—is much appreciated.  Enjoy!

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ervin Cohen & Jessup LLP | Attorney Advertising

Written by:

Ervin Cohen & Jessup LLP

Ervin Cohen & Jessup LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.