When litigation is on the horizon, preserving evidence becomes a critical part of the legal process. But too often, well-intentioned businesses unknowingly make missteps that jeopardize their own position. These mistakes, like reassigning laptops, deleting email accounts, or running cleanup tools, can lead to spoliation claims.
Spoliation is the destruction or alteration of evidence that might be relevant to a legal matter. Courts take it seriously, and mishandling digital evidence can result in sanctions, adverse inferences, or even outright dismissal of claims.
Here’s how to avoid common pitfalls and preserve data properly when the stakes are high.
What Spoliation Looks Like in Practice
Spoliation isn’t always intentional. In fact, it often happens because someone doesn’t understand the forensic value of seemingly routine systems:
- Letting cloud accounts auto-delete after 30 days
- Editing files without preserving originals
- Factory resetting a device before it’s reviewed
- Wiping logs to “clean up” a server
Even routine IT actions can compromise critical evidence. Once litigation is reasonably anticipated, the duty to preserve kicks in, and failure to act properly can have long-lasting consequences.
Common Mistakes That Lead to Evidence Loss
- Reassigning or reformatting a departing employee’s device
Devices tied to a key individual should be set aside and preserved before any reuse. - Deleting accounts or resetting passwords without first preserving data
Email, cloud drives, and messaging platforms should be archived, not erased. - Running cleanup utilities
Software that erases temp files or “cleans drives” can wipe valuable forensic artifacts like deleted files, log remnants, or usage histories. - Letting logs roll over or expire
Many systems only retain logs for a few days or weeks. Critical data can vanish if not collected promptly. - Attempting DIY investigations
Even well-meaning attempts to “look around” can alter or overwrite file system metadata, jeopardizing the evidence.
Best Practices for Legal and IT Teams
When you suspect a dispute may become legal, or upon receiving a legal hold notice:
- Immediately preserve relevant devices
Avoid using, rebooting, or updating them until imaging is complete. - Suspend auto-deletion policies
Make sure email systems, server logs, and cloud platforms won’t purge content due to routine retention settings. - Capture forensic images
Disk or mobile device images preserve all data, including deleted files and timestamps, which can be crucial later. - Coordinate with legal counsel
They can help define the scope of what must be preserved and ensure compliance with court expectations. - Document every step
A solid chain of custody, along with records of when and how preservation actions were taken, strengthens your position.
Why This Matters: How Spoliation Undermines Your Case
Spoliation doesn’t just frustrate your legal team, it can fundamentally shift the outcome of a case. Courts may:
- Instruct juries to assume the lost evidence was unfavorable to your side.
- Impose monetary sanctions to cover the opposing party’s added costs.
- In extreme cases, dismiss your claims or defenses entirely.
These penalties reflect the seriousness of destroying potentially relevant evidence, intentional or not.
Proactive Preservation Pays Off
The good news? Spoliation is largely avoidable with a bit of foresight. You don’t need to predict exactly what data will matter, only recognize that it could. By preserving broadly, documenting thoroughly, and acting quickly, you give your legal team the best chance to respond effectively.
It also sends a strong signal to courts and opposing counsel that your company takes its responsibilities seriously, reducing the risk of sanctions and often leading to faster, more favorable resolutions.
Simple mistakes can have outsized consequences in litigation. By understanding the importance of digital evidence and acting with care, companies can avoid spoliation pitfalls and protect their position.
When legal matters arise, how you handle your data matters just as much as what that data contains. A thoughtful preservation process is one of the most valuable forms of early defense.
About Swailes Computer Forensics
Swailes Computer Forensics provides expert digital forensic services to law firms, corporations, and organizations nationwide. Our work includes investigations into intellectual property theft, employee misconduct, data breaches, and more. With decades of experience and a commitment to integrity and clarity, we help clients uncover critical evidence and take informed action.
If you’re facing a potential case of employee data theft or have concerns about unauthorized activity, contact us for a confidential consultation.