Spoliation of Things That Are Not Electronic

A case about a failed bracket and a case about deleted messages can be tried in the same courtroom under different law. The federal rule that governs lost electronic information says nothing about objects, and the framework that governs objects is the one the rule was written to displace. Where a case involves both, two standards run in parallel on the same facts.

What the rule leaves outside

Subdivision (e) applies to electronically stored information and to nothing else. A discarded component, a consumed sample, a demolished structure, a vehicle released to salvage, a paper file put through a shredder: none of these fall within it, however central they are to the dispute.

The confinement was deliberate. The earlier version of the subdivision also addressed electronic information, and the problem the amendment set out to solve was specific to that material — exponential growth in volume, sharply divergent circuit standards, and preservation spending driven by fear of severe sanctions. Physical evidence had not generated the same difficulty.

Nor did the rule take away anything a court previously had for physical evidence. The note explains that the amended subdivision forecloses reliance on inherent authority or state law only for determining when the specified measures should be used for lost electronic information. Outside that domain, inherent authority operates exactly as it did before.

The practical consequence is that characterization matters. A photograph of a defect stored on a server is electronic information; the defective part is not. Where the same underlying fact could have been proved either way, the party seeking a remedy has an incentive to frame the loss as physical, because the findings required are less demanding.

Inherent authority and the older standards

Federal courts possess an inherent power to manage proceedings and to respond to conduct that abuses them, and spoliation of physical evidence is addressed there. The elements applied are the familiar ones: a duty to preserve, a breach, a culpable state of mind, and relevance of the lost item to a claim or defense.

The culpability threshold is where the divergence lies. Circuits differ on whether negligence suffices for an adverse-inference instruction, whether gross negligence is required, or whether bad faith must be shown. Those are exactly the standards the amended rule removed for electronic information, and they remain in force for everything else.

Relevance carries more weight in this setting than in the rule, because there is no equivalent of the restoration precondition. A party arguing that a discarded object was central has to establish what the object would have shown, often through photographs, service records, or an examination of a sibling unit. Where a substitute exists and has been examined, courts have generally declined to impose anything beyond costs.

The available responses are also less structured. Inherent authority is not organized into tiers, and a court weighing the degree of fault, the prejudice, and the availability of lesser measures reaches a result without the constraint that a curative measure must not achieve a severe one. That flexibility is the older approach the rule replaced in its own domain, and it produces less predictable outcomes.

State courts and the independent claim

State systems run on their own law, and most have no analog to the federal electronic-information rule. Discovery sanctions statutes supply the general authority; in California, for example, the discovery act lists monetary, issue, evidence, terminating and contempt sanctions for misuse of the discovery process, without any separate provision keyed to electronic material.

Several states supplement that with an evidentiary provision. California's evidence code allows the trier of fact, in deciding what inferences to draw, to consider a party's willful suppression of evidence. That is narrower than an adverse-inference instruction and broader in application, since it is not confined to any category of evidence and does not depend on a preliminary judicial finding.

The states that have declined to recognize the tort have generally given the same reason: the existing evidentiary and discovery responses are adequate, and a separate cause of action invites a trial within a trial about the value of evidence nobody can examine. Those that recognize it usually limit it to a third party who destroyed evidence, where no discovery sanction is available because the destroyer is not before the court.

A minority of states recognize spoliation as an independent tort, sometimes against a party and sometimes only against a third party who destroyed evidence. The committee note to the federal rule states that it does not affect the validity of such a claim where state law applies and authorizes it, so the claim can travel into federal court in a diversity case even though the sanctions analysis does not.

Comparing the three routes

The divergence is easiest to see in a case with a single act and two kinds of evidence. Identical conduct produces different exposure depending on the medium, which is a consequence of confining the rule rather than an accident of drafting. The parties argue about characterization for that reason, and the argument is usually resolved by describing precisely what was lost.

Handling a case that spans both

Preservation planning has to reach objects as well as systems. A hold notice addressed to mailboxes and chat channels does nothing about a returned product sitting in a warehouse or a sample scheduled for destructive testing, and physical items are frequently in the custody of people who never receive the notice at all.

Where a physical item must be examined or consumed, the ordinary approach is to document its condition before testing, to give notice and an opportunity to attend, and to preserve what remains. The methods overlap substantially with those used for acquiring data without changing it, and the reason is the same: the record of the item's condition becomes the evidence once the item itself is altered.

Criminal exposure runs alongside all of this and is independent of it. Federal law reaches the destruction of a record with intent to obstruct a federal matter, and many state statutes reach the willful destruction of anything about to be produced in evidence, including digital images and video recordings. Neither depends on the civil findings described in the structure of the federal sanctions rule or on the intent finding that unlocks its severest measures, and both can attach to conduct occurring before any civil preservation duty attached.