What Happens If Relevant Evidence Is Destroyed During a Lawsuit?

Imagine you are involved in a lawsuit and discover that an important email, text message, document, photograph, security recording, or other piece of evidence has disappeared.

Maybe it was deleted accidentally. Maybe a computer was replaced. Maybe a company’s routine data-retention system automatically erased old files. Or, in a more serious situation, someone intentionally destroyed evidence after knowing that it could matter to the lawsuit.

What happens next?

The answer can be significant. In U.S. litigation, the destruction or loss of potentially relevant evidence may be considered spoliation of evidence. Depending on the circumstances, a court may order corrective measures or impose serious sanctions against the party responsible.

However, the destruction of evidence does not automatically mean that the other side wins the lawsuit. Courts generally look at several factors, including whether the evidence should have been preserved, why it was lost, whether the loss prejudiced the opposing party, and whether the party intended to deprive the other side of the information.

Here is what that means in practical terms.

What Is Spoliation of Evidence?

Spoliation generally refers to the destruction, alteration, loss, or failure to preserve evidence that a party had a duty to preserve.

The issue often arises when evidence that could be relevant to a lawsuit is no longer available.

For example, suppose an employee files a discrimination lawsuit against a company. Before the lawsuit begins, the company receives information suggesting that litigation is reasonably foreseeable. Relevant emails and internal messages may then become important evidence.

If those records are deliberately deleted after the preservation obligation has arisen, the court may have to determine whether spoliation occurred.

The same basic concern can arise with physical evidence, paper records, photographs, videos, computer files, text messages, emails, databases, and other electronically stored information.

Why Does the Timing Matter?

One of the most important questions is whether the party had a duty to preserve the evidence when it was destroyed.

People and businesses do not generally have to preserve every piece of information forever simply because a dispute might someday occur.

But when litigation is reasonably foreseeable, a preservation obligation can arise concerning relevant information. The federal rules specifically address the loss of electronically stored information (ESI) in Rule 37(e). (ded.uscourts.gov)

This is one reason lawyers often issue a litigation hold.

A litigation hold is designed to prevent potentially relevant information from being routinely deleted, overwritten, altered, or destroyed once litigation is anticipated.

For example, a company may need to suspend ordinary deletion procedures for relevant emails, employee files, text messages, electronic records, or other information.

What If the Evidence Was Destroyed Accidentally?

Accidental loss does not necessarily result in severe sanctions.

Federal Rule of Civil Procedure 37(e) specifically addresses situations involving electronically stored information that should have been preserved but was lost because a party failed to take reasonable steps to preserve it.

The analysis can depend on whether the information can be restored or replaced from another source and whether the opposing party was prejudiced by its loss.

Federal courts have emphasized that preservation does not necessarily require perfection. The focus can be on whether reasonable preservation steps were taken under the circumstances. (ned.uscourts.gov)

For example, suppose a company experiences a computer-system failure, and some potentially relevant files disappear. If the company had taken reasonable preservation measures and the information can be recovered from backups, the situation may be very different from deliberately deleting the same files.

What If the Evidence Was Intentionally Destroyed?

This is much more serious.

Under Rule 37(e)(2), when electronically stored information that should have been preserved is lost and the court finds that the party acted with the intent to deprive another party of the information's use in the litigation, much stronger remedies may become available.

Depending on the circumstances, the court may instruct the jury that it may or must presume the lost information was unfavorable to the party that lost it, or the court may dismiss the action or enter a default judgment. (ned.uscourts.gov)

That does not mean every missing email results in a dismissal or adverse inference.

The court must examine the circumstances and determine what remedy is appropriate.

What Is an Adverse Inference?

An adverse inference can be one of the most important consequences of evidence destruction.

In simple terms, an adverse inference allows a court or jury to draw a negative conclusion about the missing evidence in appropriate circumstances.

For example, imagine that a defendant had an important set of emails that should have been preserved. The emails are later destroyed, and the court finds that the defendant intentionally destroyed them to prevent the plaintiff from using them.

The court could potentially allow an inference that the missing information would have been unfavorable to the defendant.

But this is not automatic.

Courts consider the applicable rule, the circumstances surrounding the loss, the party's intent, and the prejudice caused by the destruction.

Can a Court Exclude Other Evidence?

Yes.

Depending on the circumstances, a court may limit a party's ability to rely on certain evidence or impose other measures designed to address the harm caused by the loss.

The purpose is generally not to punish someone simply because a file disappeared. Instead, the court may try to restore fairness in the litigation and prevent one party from gaining an unfair advantage because relevant evidence was lost.

Federal Rule of Civil Procedure 37 provides courts with several discovery-related mechanisms, including sanctions in appropriate circumstances.

Can the Court Order Monetary Sanctions?

Potentially, yes.

A court may impose monetary consequences in appropriate cases involving discovery misconduct or spoliation.

Those consequences can include expenses caused by the misconduct or other monetary sanctions authorized by the applicable rules and circumstances.

The U.S. Supreme Court has also recognized that federal courts possess inherent authority to address certain bad-faith litigation conduct. In Chambers v. NASCO, Inc., the Supreme Court explained that federal courts have inherent power to sanction certain conduct that abuses the judicial process, although that power must be exercised carefully and consistently with due process. (Legal Information Institute)

The exact sanction depends heavily on the facts of the case.

Could the Lawsuit Be Dismissed?

In extreme circumstances, potentially yes.

Dismissal is among the most serious sanctions available to a court.

For example, where the applicable rule permits it and the court finds intentional destruction of electronically stored information with the intent to deprive the opposing party of its use, Rule 37(e)(2) allows dismissal in an appropriate case.

Similarly, a defendant's intentional misconduct can, in appropriate circumstances, contribute to a default judgment.

But courts generally treat these severe remedies differently from ordinary discovery disputes. The circumstances and seriousness of the misconduct matter.

The Supreme Court has described dismissal as a particularly severe sanction and has emphasized the need for appropriate judicial discretion when courts exercise their sanctioning powers. (Legal Information Institute)

What If the Evidence Could Be Replaced?

This can make a major difference.

Suppose an employee deletes an email, but the same email exists in the recipient's mailbox, a backup system, a server, or another independently preserved source.

The loss may be less damaging because the information may still be available.

Rule 37(e) specifically addresses situations where electronically stored information cannot be restored or replaced through additional discovery or other means. (ned.uscourts.gov)

That is why a court may first consider whether the supposedly destroyed information can be recovered elsewhere.

What If the Other Side Was Not Prejudiced?

Prejudice is also important.

Suppose evidence was lost, but the opposing party can prove its case through other documents, witnesses, emails, photographs, or records.

The court may conclude that the loss did not cause sufficient prejudice to justify a particular sanction.

On the other hand, if the destroyed evidence was unique and central to a claim or defense, the consequences can be much more serious.

Courts therefore examine the actual effect of the evidence loss rather than simply assuming that every missing document caused the same amount of harm.

What Happens During Discovery?

Discovery is often where evidence destruction becomes especially important.

Under Federal Rule of Civil Procedure 34, parties can request relevant documents, electronically stored information, and tangible things within another party's possession, custody, or control, subject to the applicable discovery rules. (Legal Information Institute)

If a party discovers that responsive evidence has disappeared, the opposing party may raise the issue with the court.

The parties may also need to determine:

• What evidence was lost?

• When was it lost?

• Who had control over it?

• Was litigation already reasonably foreseeable?

• Was a litigation hold in place?

• Were ordinary deletion procedures suspended?

• Could the evidence be recovered?

• Was the evidence unique?

• Did the loss prejudice the opposing party?

• Was the destruction accidental, negligent, reckless, or intentional?

These questions can become central to a spoliation dispute.

What About Text Messages and Social Media?

Modern lawsuits frequently involve electronic evidence that exists outside traditional business records.

Text messages, instant messages, social-media communications, cloud files, photographs, videos, emails, and data stored on personal devices can all potentially become relevant depending on the claims and defenses in a case.

That does not mean every message or social-media post must automatically be preserved forever.

The important question is whether the information falls within a preservation obligation and the applicable discovery rules.

Because electronic information can disappear quickly, preservation issues can become particularly complicated when litigation is anticipated.

Can a Party Destroy Evidence Under a Normal Document-Retention Policy?

This is an area where businesses need to be particularly careful.

A company may have a legitimate document-retention policy that automatically deletes emails or other data after a certain period.

The existence of such a policy does not automatically make every deletion improper.

However, if litigation is reasonably foreseeable and relevant information should be preserved, continuing ordinary deletion procedures can create serious problems.

Courts may examine whether reasonable steps were taken to preserve relevant information.

Federal courts have specifically recognized the challenges created by the enormous volume of electronically stored information and the importance of reasonable preservation practices. (United States Courts)

What Should You Do If You Believe the Other Side Destroyed Evidence?

If you believe relevant evidence has been destroyed, do not simply assume that the court will automatically impose sanctions.

Start by identifying what evidence is missing and why you believe it existed.

Preserve whatever related evidence you still have.

For example, if an important email appears to have disappeared, look for copies in attachments, forwarded messages, backups, other recipients' accounts, document-management systems, or other legitimate sources.

You should also document what you know about the missing evidence.

Depending on the case, your attorney may raise the issue during discovery, request additional information, seek an appropriate discovery order, or ask the court for sanctions.

The specific procedure will depend on the court, applicable rules, and facts of the case.

What If You Accidentally Deleted Something?

Do not try to hide the deletion.

If you discover that potentially relevant evidence was accidentally deleted, promptly notify your lawyer and take reasonable steps to determine whether the information can be recovered.

Trying to conceal the loss can create a much more serious problem than the original accidental deletion.

A court may be more concerned about intentional concealment or destruction than about an honest mistake followed by reasonable efforts to address the problem.

Does Destroying Evidence Mean the Other Side Automatically Wins?

No.

This is one of the biggest misconceptions about spoliation.

The destruction of evidence does not automatically establish liability.

A court must consider the applicable legal standard and the circumstances surrounding the loss.

In federal cases involving ESI, Rule 37(e) provides different potential responses depending on whether the loss caused prejudice and whether the party acted with an intent to deprive the opposing party of the information. (ned.uscourts.gov)

The result can therefore range from no significant sanction to serious consequences such as an adverse inference, monetary sanctions, exclusion of evidence, dismissal, or default judgment, depending on the circumstances and governing law.

Why Evidence Preservation Matters So Much

A lawsuit is supposed to be decided using the evidence and legal arguments properly available to the court.

When potentially relevant evidence disappears, the court may be forced to decide a difficult question: can the case still be fairly resolved without that information?

That is why preservation obligations matter.

The goal is not to require parties to preserve every piece of information imaginable. Instead, the rules seek to balance the need for relevant evidence with the practical realities of modern litigation and electronic data.

Federal Rule 37(e) was specifically developed to address the preservation and loss of electronically stored information.

Conclusion

If relevant evidence is destroyed during a lawsuit, the consequences can range from relatively minor discovery remedies to very serious sanctions.

The court may consider whether there was a duty to preserve the evidence, whether reasonable preservation steps were taken, whether the evidence can be recovered, whether the opposing party was prejudiced, and whether the evidence was intentionally destroyed.

The most serious consequences generally arise when a party deliberately destroys evidence to prevent the other side from using it.

For anyone involved in litigation, the safest approach is simple: once litigation is reasonably foreseeable, take evidence preservation seriously and speak with a qualified attorney about what must be preserved.

A missing document can sometimes be recovered. A deliberate attempt to destroy evidence, however, can create an entirely separate legal problem.

Sources

• Federal Rule of Civil Procedure 37(e), as discussed in federal court materials concerning preservation and loss of electronically stored information. (ned.uscourts.gov)

• U.S. Courts, information concerning amendments to the Federal Rules addressing preservation and loss of electronically stored information. (United States Courts)

• Cornell Legal Information Institute, explanation of document inspection and discovery under Federal Rule of Civil Procedure 34. (Legal Information Institute)

• Chambers v. NASCO, Inc., 501 U.S. 32 (1991), U.S. Supreme Court. (Legal Information Institute)

Disclaimer

This article is provided for general informational and educational purposes only. It is not legal advice and does not create an attorney-client relationship. Laws and court procedures can vary by jurisdiction and by the facts of a particular case. If you are involved in a lawsuit or believe relevant evidence has been lost or destroyed, consider consulting a qualified attorney licensed in the applicable jurisdiction.