Spoliation in the Age of Electronically Stored Information

By | January 8, 2020

Spoliation in the context of civil proceeding is the act of intentionally destroying, mutilating, or altering documents relevant to litigation. There is a general duty on parties or prospective parties in litigation to take reasonable steps to preserve evidence related to an on-going litigation, or reasonably anticipated litigation.

Before the widespread use of electronic medium in the storage of documentary information, spoliation of documentary evidence usually took the form of destruction of the subject matter such as the shredding, burning or discarding of paper documents. Where the volume of the paper document is large, more effort will be required to successfully perpetrate the act of spoliation. However, with the advent of electronically stored information (ESI), the act of spoliation took a relatively easy form never imagined when the doctrine of spoliation was developed. With a mere press of a button, a library-size of information could be successfully spoliated in a matter of seconds.

Today, more than ninety percent of documentary evidence used in civil litigation exists in the form of ESI. The ease with which spoliation can be perpetrated in the age of ESI gives rise to serious concern. Thus, there arises the need to revisit a doctrine that was crafted in the age of paper document so as to identify necessary reforms that will render this doctrine more suited for the modern age of ESI.

The Doctrine of Spoliation in Historical Context

The origin of the doctrine of spoliation can be traced back to ancient Rome where an obligation was imposed on businessmen to preserve their business records or Codex for a specified period of time. Failure to do so would result in the application of the maxim omnia praesumuntur contra spoliation (all things are presumed against the wrongdoer) in the event of litigation. This could result in the denial of the claim (if brought by the spoliator).

The application of the maxim soon spread to other jurisdictions. Perhaps the US jurisdiction represents a rigid application of the maxim somewhat similar to the approach in Roman courts. There are examples where the American courts have applied the maxim in cases of spoliation by either striking out the claim, disallowing expert reports, disallowing testimony of spoliating party’s witnesses, or awarding historic monetary sanctions against the spoliating party. The English courts on the other hand have adopted a fairly conservative approach which has seen the application of the maxim tampered with some measure of softening. The maxim is now interpreted in England to mean that intentional destruction of evidence relevant to litigation rises a strong presumption that if the evidence were available, it would be unfavourable or not helpful to the spoliator.

Canadian courts have closely followed the English Court’s application of the maxim. The leading case in this jurisdiction is the Supreme Court of Canada decision in 1869 in St. Louis v. The Queen. In St. Louis, following the completion of work by a contractor engaged by the Crown, the contractor’s employees as part of the company’s routine operation intentionally (but innocently) destroyed documents relating to the time sheet and pay records of the projects. A dispute subsequently arose over the balance due on the work. The contractor brought an action in the Exchequer Court for the balance it alleges. Invoking the maxim, the Court dismissed the case. The Exchequer Court adopted the rigid Roman interpretation of the maxim holding that the deliberate destruction of the documents was designed to cover up a fraud. On appeal, this decision was unanimously overturned by the Supreme Court of Canada which was of the view that the Exchequer Court had carried too far the consequences of the maxim. The court further held that the destruction of the evidence in this case, even though it was done intentionally (as it was not accidental), and prior to litigation, it was not a case of spoliation as it was done in the regular course of business when no litigation was reasonably anticipated.

Spoliation: Paper v. Electronic Documents

Paper and electronic documents are similar in many ways. They both have equal status in civil proceedings – they are both admissible in evidence to prove a fact in issue. Rules of courts and civil procedure define document to include both paper and electronic documents. Also, party’s discovery obligation in civil proceeding relates to both paper and electronic documents relevant to litigation. Hence once a particular piece of evidence is relevant to litigation, it must be disclosed and produced at the discovery stage of the litigation. It is immaterial whether it exists in paper or electronic format. Hence it was noted in Linnen v. A.H. Robins that:

A discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet…[T]here is nothing about the technological aspects involved which renders documents stored in an electronic media “undiscoverable.”

Notwithstanding this similarities, paper and electronic documents differ in even more number of ways. In terms of physical format, paper document exists in tangible format, while electronic document exists in intangible format. Unlike paper documents, electronic documents are only readable with the aid of an electronic or mechanical device.  While paper documents exist in just one format – paper, in the case of electronic documents, the digital format in which the document exists differs – from PDF, JPEG, TIFF, Word document etc. They also differ in terms of their destructibility. When a paper document is shredded or set on fire, recoverability is practically impossible. This is not the case with electronic documents. Deleting electronic document from an electronic drive or storage does not (without more) permanently erase the document from the drive. Such document could still be accessible or recoverable especially where the storage space previously occupied by the “deleted” document has not been overwritten by the file allocation table (FAT). Also, destruction of electronic document could be achieved with much ease when compared to spoliation of paper document which may require more resources and effort to accomplish the same task.

Another distinction between paper and electronic documents lies on the volume in which information is currently generated and replicated in the latter format. Electronic documents can be easily replicated, and greater volume can be stored in more locations requiring far lesser space than paper document. A library volume of documents can be stored in a tiny memory stick, or even in the ubiquitous space-less cloud. This particular feature of electronic document also makes it more susceptible to spoliation than paper document.

Electronic document contains “metadata” which also make it fundamentally different from paper document. Metadata contains information about the document which may not necessarily be evident on the face of the document. Metadata of a Word document for example may reveal information about the filename, the dates the document was created and modified, names of the creator and editor of the document, the person who last accessed the document etc. The concept of metadata is important in the spoliation discuss because spoliation could also take the form of destruction of the metadata. This is possible where a party prints electronic document, and then scans the printed copy back into electronic format thus effectively spoliating the metadata.

The rise and rise of ESI

It has been estimated that more than ninety percent of documents today exist in electronic form. Electronic documents are currently being created and replicated in volumes that outpace and outnumber paper documents. Paper documents are now conveniently being replaced by electronic documents. For example, while the volume of email sent daily continue to rise, the reverse has been the case with postal mail. Canada Post for example reported that in 2014, it delivered 1.4 billion fewer pieces of mails than it did in 2006.

The strive towards paperless office is replacing paper documents with greater volume of electronic documents.  Furthermore, the decreasing cost of electronic document storage is further speeding the electronic document surge. A typical laptop today has about eighty gigabytes hard drive – a capacity to hold about eight million pages of information. Cloud storage is even providing bigger storage capacity at fraction of costs. The incentives any individual or business has in keeping or storing documents in paper form is now gradually disappearing.

Another factor responsible for increasing surge of electronic document is the ease with which it can be created and replicated. Same email could be conveniently sent to thousands of persons on a listserv at the fraction of time and cost it would take to create and send a paper version of same correspondence to same number of people. Recipients of the email could also forward the same as well as any accompanying attachment to others thus creating an endless labyrinth of electronic document. The volume of electronic documents is further compounded by the fact that some organizations keep backup of their electronic documents.

The proliferation in electronic document as well as the ease with which such documents can be destroyed is of particular importance in civil litigation. For one reason, the proliferation of ESI results in increased cost of discovery. Also, the ease with which the documents could be destroyed has adverse impact on the administration of justice. While the doctrine of spoliation was developed to deal with the latter problem, the proliferation of electronic document requires that we fine tune the doctrine spoliation to adequately address new issues and challenges that has risen since the development of the doctrine, to bring it in line with the realities of the digital age of ESI.

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