Understanding Digital Spoliation, Rule 37(e)

As evidence increasingly exists in electronic formats, digital spoliation has become a central risk in modern litigation, writes David Pemberton of Everlaw. For legal ops professionals, understanding digital spoliation and Rule 37(e) is essential to building defensible discovery processes.

Digital spoliation occurs when electronically stored information (ESI) is altered, lost, or destroyed after a duty to preserve has been triggered, whether intentionally or unintentionally. While some acts are deliberate, such as destroying incriminating data, many instances stem from delayed legal holds, automatic deletion policies, overlooked retention settings, and metadata alterations.

The duty to preserve begins when litigation is reasonably anticipated, internal and regulatory investigations are triggered, or government inquiries are made. Rule 37(e) of the Federal Rules of Civil Procedure provides the framework for evaluating lost ESI, emphasizing proportional responses. Judicial analysis typically centers on the reasonableness of preservation efforts and the intent behind the loss. Courts will first assess whether the information can be restored and whether its loss prejudices the opposing party.

Preventing spoliation requires disciplined execution. Prompt legal hold notification to custodians, close coordination with IT to suspend deletion policies, and comprehensive identification of data sources are critical steps. Both information governance policies ensuring relevant data isn’t automatically deleted and a detailed log of preservation actions reduce risk and strengthen defensibility. In addition, legal ops needs to train employees so files are not deleted and laptops of departing employees are not reformatted when a hold is in place.

As digital environments grow more complex, structured processes and supporting technologies play a pivotal role in safeguarding ESI and maintaining compliance.