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Spoliation of Evidence - Requirements for an Adverse Inference","","Guide for attorneys on preserving electronic evidence and avoiding spoliation in civil litigation. Covers how routine computer use can destroy or alter electronic data, metadata, and access dates, and the steps needed to meet preservation responsibilities, including communicating with clients and sending preservation letters or seeking preservation orders. Explains sanctions risk as electronically stored information expands, and details how courts evaluate intent and bad faith through requirements for adverse inference.",{"@graph":63,"@context":118},[64,80,101],{"@type":65,"itemListElement":66},"BreadcrumbList",[67,71,74,77],{"item":68,"name":69,"@type":70,"position":9},"https://docshare.wps.com","Home","ListItem",{"item":72,"name":10,"@type":70,"position":73},"https://docshare.wps.com/template/",2,{"item":75,"name":51,"@type":70,"position":76},"https://docshare.wps.com/template/general/",3,{"item":78,"name":59,"@type":70,"position":79},"https://docshare.wps.com/template/effectively-preserving-evidence-a-spoliation-of-evidence-requirements-for-an-adverse-inference/279883/",4,{"url":78,"name":59,"@type":81,"image":82,"author":87,"headline":59,"publisher":90,"fileFormat":93,"inLanguage":57,"description":61,"dateModified":94,"datePublished":95,"encodingFormat":93,"isAccessibleForFree":96,"interactionStatistic":97},"DigitalDocument",{"url":83,"@type":84,"width":85,"height":86},"https://docshare.wps.com/thumbnails/effectively-preserving-evidence-a-spoliation-of-evidence-requirements-for-an-adverse-inference/279883.png","ImageObject",442,249,{"name":88,"@type":89},"\tJames","Person",{"url":68,"name":91,"@type":92},"DocShare","Organization","application/pdf","2026-09-24","2026-09-16",true,{"@type":98,"interactionType":99,"userInteractionCount":76},"InteractionCounter",{"@type":100},"ViewAction",{"@type":102,"mainEntity":103},"FAQPage",[104,110,114],{"name":105,"@type":106,"acceptedAnswer":107},"Why is preserving electronic data important for attorneys and their clients?","Question",{"text":108,"@type":109},"Electronic evidence can be destroyed or altered through routine computer use. Attorneys must ensure clients understand preservation responsibilities so potentially relevant evidence is not lost or changed.","Answer",{"name":111,"@type":106,"acceptedAnswer":112},"What actions can lead to spoliation of evidence in electronic systems?",{"text":113,"@type":109},"Merely turning on a computer can eliminate temporary files, overwrite data, or change metadata. Opening a file may also update its last-accessed date, which can suggest alteration.",{"name":115,"@type":106,"acceptedAnswer":116},"What do courts generally require to impose sanctions such as an adverse inference for spoliation?",{"text":117,"@type":109},"Courts typically look for intentional deletion, alteration, or concealment, often requiring bad faith. In some situations, adverse inferences may be granted even without bad faith if litigation was reasonably foreseeable when records were destroyed.","https://schema.org",{"og:url":78,"og:type":120,"og:title":59,"og:site_name":91,"og:description":61},"article",{"robots":122,"canonical":78},"index,follow",{"doc_id":124,"site_id":56},279883,1789529170,{"code":4,"msg":5,"data":127},{"doc_id":124,"user_id":128,"nickname":88,"user_avatar":129,"doc_module":9,"category_id":50,"category_name":51,"doc_title":59,"doc_description":61,"doc_content":130,"file_id":131,"file_url":132,"file_type":133,"file_size":134,"view_count":76,"is_deleted":4,"is_public":9,"is_downloadable":9,"audit_status":9,"page_count":135,"language":136,"language_code":57,"site_id":56,"html_lang":57,"table_of_contents":137,"faqs":138,"seo_title":139,"seo_description":61,"update_tm":125,"read_time":47},2336474466412,"https://ap-avatar.wpscdn.com/davatar_155a257f0dc6eb9ab79c44ca47cae57d","Ronald I. Raether Jr.  \nEFFECTIVELY PRESERVING EVIDENCE  \nA.  Spoliation of Evidence  \n1. Avoiding Spoliation of Evidence  \nAttorneys must caution their clients to beware of the consequences of a failure to adequately preserve electronic data that is in their possession.85 Unlike paper documents that require overt acts like shredding to be destroyed, electronic data can be destroyed through routine use of computers.86 Merely turning on a computer can eliminate \"slack\" and \"temporary\" files, cause data to be overwritten, or change metadata.87 By clicking on a file, its \"last-accessed\" date may change, which invites a suggestion that the file has been altered. Attorneys can avoid spoliation of evidence by making sure that their clients understand their preservation responsibilities, informing clients of actions necessary to preserve evidence, and sending opponents preservation letters and/or seeking a preservation order. These issues will be discussed infra with greater detail.  \n2.  Sanctions for Spoliation  \nAs the reliance on electronic storage of documents and methods of communication grows, communications or drafts that individuals or companies typically did not preserve or save in the past are now preserved in e-mails and documents saved on computer hard drives, networks or other media. This large increase in potentially discoverable information, along with the numerous locations where electronic data maybe stored, results in not only more potential evidence to maintain and review but also greater risk that some evidence may be lost, altered through the general course of business, destroyed as part of an adopted retention policy or destroyed intentionally. These greater risks equate to a higher risk of sanctions for discovery violations, including spoliation.  \nOne recent example illustrating the consequences of a failure to produce electronic evidence was the ruling in a fraud case brought by New York financier Ronald Perelman against investment banking firm Morgan Stanley. Morgan Stanley repeatedly failed to turn over e-mails that were connected to a merger in 1998 between Coleman, Inc. a company owned by Perelman, and Morgan Stanley's client, Sunbeam Corporation.89 The court ruled that Morgan Stanley had been \"grossly negligent\" in handling its e-mails.90 The judge wrote, \"The prejudice to [Perelman] from these failings cannot be cured.\"91 As a result, the court told jurors that they could infer that Perelman was a victim of fraud.92 In making this ruling, the judge suggested that Morgan Stanley may have withheld information because it wanted to hide the Securities and Exchange Commission's probe into its e-mail retention policies.93 Just a week before this ruling, Morgan Stanley disclosed that the SEC was considering enforcement action against it for not properly retaining e-mails.94  \nAnother recent example of the possible consequences of a failure to produce electronic evidence is the jury verdict reached in Zubulake. On April 6, 2005, the jury ordered UBS to pay $29.2 million to former saleswoman, Laura Zubulake, who had sued UBS for gender discrimination.95 The judge had instructed the jury that it could conclude that e-mails that were destroyed contained information adverse to UBS.96  \n3.  Requirements for an Adverse Inference  \nSpoliation is \"[t]he intentional destruction, mutilation, alteration, or concealment of evidence.\"97 As the definition suggests, courts typically require the deletion, alteration or concealment of evidence to be intentional or done in bad faith in order to merit the imposition of sanctions:  \n•  Beck v. Haik, 377 F.3d 624 (6th Cir. 2004V The court defined spoliation to be the intentional destruction of evidence.  \n•  Mathias v. Jacobs, 197 F.R.D. 29, 37 (S.D.N.Y. 2000) vacated on other grounds, 167 F. Supp. 2d 606 (S.D.N.Y. 2001) . The court  \nheld that the destruction of evidence must be \"willfull\" to impose an adverse inference.  \n•  Banco Latino, S.A.C.A. v. Gustavo A. Gomez Lopez, 53 F","cbCaifSmA8TakJUF","https://ap.wps.com/l/cbCaifSmA8TakJUF","pdf",84162,13,"English","# A. Spoliation of Evidence\n## 1. Avoiding Spoliation of Evidence\n## 2. Sanctions for Spoliation\n## 3. Requirements for an Adverse Inference","[{\"question\":\"Why is preserving electronic data important for attorneys and their clients?\",\"answer\":\"Electronic evidence can be destroyed or altered through routine computer use. Attorneys must ensure clients understand preservation responsibilities so potentially relevant evidence is not lost or changed.\"},{\"question\":\"What actions can lead to spoliation of evidence in electronic systems?\",\"answer\":\" Merely turning on a computer can eliminate temporary files, overwrite data, or change metadata. Opening a file may also update its last-accessed date, which can suggest alteration.\"},{\"question\":\"What do courts generally require to impose sanctions such as an adverse inference for spoliation?\",\"answer\":\"Courts typically look for intentional deletion, alteration, or concealment, often requiring bad faith. In some situations, adverse inferences may be granted even without bad faith if litigation was reasonably foreseeable when records were destroyed.\"}]","EFFECTIVELY PRESERVING EVIDENCE - A. Spoliation of Evidence - Requirements for an Adverse Inference | PDF"]