Among the critical issues a litigator needs to be acquainted with when dealing with evidence in a legal proceeding is that of “spoliation” – when the evidence you were counting on as a litigator has been compromised.
Black’s Law Dictionary defines spoliation as follows:
“The intentional concealment destruction, alteration or mutilation of evidence, usually documents making them unusable or invalid.”
Spoliation can range from a client claiming injury from a product that he or she then discarded, to a premeditated action to destroy evidence with the intent of negatively impacting the outcome of a case (the latter is viewed as a criminal action can result in fines and, in some instances, incarceration).
Spoliation and its interpretation in the confines of a specific case may vary from jurisdiction to jurisdiction wherein it relies on case law.
Important to studying the impact of spoliation is the concept of “spoliation inference” wherein the motive for hiding, altering, withholding, or destroying evidence is examined – in short, if a party to legal action felt compelled to render a key piece of evidence unavailable or somehow unusable, there is a presumption that is difficult to avoid – a guilty conscience and a strong motivation to make evidence vanish.
In today’s world of E-discovery, spoliation inference rears its head frequently in social media as even the deletion of Facebook postings can be called into question. (Yes, your client’s Facebook posts, most especially photographs, may be used as evidence.) And deactivating a Facebook account can also point to spoliation. Ditto for Twitter, LinkedIn, Google+ and other social media sites. For more on this topic, see Scott Atkinson’s piece on “Social Spoliation” featured in California Lawyer. Atkinson points to a key case, Gatto v. United Air Lines, Inc. (2013 WL 1285285 (D.N.J.)) wherein a federal magistrate sanctioned a plaintiff for deactivating a Facebook account in the midst of pending litigation.
But what if your client is the one with a damning Facebook post? Don’t rush to hit the delete key – spoliation of social media information can also lead to significant increased costs if subpoenas must be issued and technology experts hired to retrieve electronic information. A notable case pertaining to this aspect of spoliation is Allied Concrete Co. v. Lester (Vir. Supreme Ct. Jan. 10, 2013) wherein a party to an injury case that resulted in the death of his wife posted a photograph of himself wearing a “I (heart) Hot Moms” tee shirt. For more on this case and the harsh results from deleting the picture from Facebook, see Brian Wassom’s “Delete at Your Own Risk: Spoliation of Social Media Evidence“.)