By: Gideon Christian
PDF Version: Revisiting the Doctrine of Spoliation in the Age of Electronic Documents
The COVID-19 pandemic has driven us deeper into the virtual world. In our “new” work environments, conversations which were previously had one-on-one in office settings are now carried on by phone calls and emails. Meetings previously held in person are now substantially held virtually in Zoom, Microsoft Teams, WebEx, etc., and they are often recorded in electronic format. One of the impacts of this change is the fact that more than ever before, evidence of our work or business interactions, discussions and transactions will exist in this electronic format. We are generating more electronic documents than ever, and some of these documents may become the subject of discovery in future litigation arising from present transactions. The inability to produce these documents when they become relevant in future litigation may give rise to spoliation. Although the doctrine of spoliation was developed in the age of paper documents, the courts have increasingly applied it in the context of electronic documents. It is important to revisit this common law doctrine to identify the proper approach in its application to electronic documents, and its limits in addressing issues relating to preservation of electronic documents in litigation.