Spoliation is the destruction, alteration, or failure to preserve evidence that a party knew or reasonably should have known was relevant to pending or anticipated litigation. In personal injury cases, defendants routinely control evidence that is central to the plaintiff's case: the truck's event data recorder, the facility's surveillance system, the product that caused the injury, the medical device that failed, the surveillance footage from a premises incident. When that evidence is destroyed after the defendant's preservation duty attached, plaintiff counsel's spoliation motion is often the most consequential filing in the case.
When the Duty to Preserve Attaches
The duty to preserve evidence arises when litigation is reasonably anticipated, not just when a complaint is filed. A truck carrier that receives a letter within hours of a fatal crash from plaintiff's counsel demanding evidence preservation, or that learns of a fatality involving its driver, is on notice that litigation is coming. The preservation duty attaches at that point, and any evidence destruction after the notice letter was sent is potentially sanctionable even if it occurred weeks or months before the complaint was filed.
The preservation demand is the plaintiff's tool for establishing when the defendant's duty began. Send it immediately, by means that create a record of receipt (certified mail, overnight courier, email with return receipt requested, or process server), and be specific about what categories of evidence must be preserved. Vague demand letters create argument about whether specific evidence types were included. A letter that explicitly names the vehicle's EDR/black box, all dashcam footage, the driver's cell phone records, and the carrier's driver qualification file for the specific driver eliminates any argument that those items were not within the demand's scope.
Federal Rule of Civil Procedure 37(e): The ESI Framework
FRCP 37(e), adopted as amended in 2015, provides the federal court framework for sanctions when electronically stored information (ESI) is lost because a party failed to take reasonable steps to preserve it. The rule creates a two-tier analysis:
- If ESI was lost and the loss cannot be restored or replaced through additional discovery, the court may order measures no greater than necessary to cure the prejudice. This curative measure tier applies when the loss was negligent or inadvertent, not intentional.
- Only if the court finds that the party acted with intent to deprive the opposing party of the use of the information may the court give an adverse inference instruction to the jury, presume that the lost information was unfavorable to the spoliating party, or dismiss the action or enter default judgment.
The 2015 amendment deliberately elevated the intent standard for the most severe sanctions, overruling circuit court decisions that had permitted adverse inference instructions based on negligent loss alone. The practical implication for plaintiff counsel: proving intentional destruction, or at minimum intentional disregard of the preservation obligation, is necessary to obtain the most powerful remedy.
The Adverse Inference Instruction
The adverse inference instruction is the most plaintiff-favorable sanction available when an intentional destruction finding is made. The instruction tells the jury that it may infer that the destroyed evidence would have been unfavorable to the party who destroyed it. In PI cases, this inference can effectively shift the burden of proof on a critical factual issue: if the jury is told it may presume the destroyed dashcam footage showed the defendant driver running the red light, and the defendant cannot overcome that presumption, the liability finding becomes substantially more certain.
The motion for the adverse inference instruction requires: (1) evidence of what was destroyed and when, (2) evidence that the destroying party knew or should have known of its preservation obligation at the time of destruction, (3) evidence that the destroyed material was relevant and would have been favorable to the plaintiff, and (4) evidence of the defendant's culpable state of mind in the destruction. Expert testimony from a digital forensics expert or EDR data specialist may be needed to establish what the destroyed data contained and why its destruction was prejudicial.
Terminating Sanctions
In the most egregious cases, terminating sanctions, including entry of default judgment or dismissal of the defendant's defenses, are available. The Supreme Court addressed the standard for attorney's fees as a sanction for bad faith discovery misconduct in Goodyear Tire and Rubber Co. v. Haeger (2017), confirming that courts have inherent authority to sanction bad-faith litigation conduct through fee awards linked to the harm the bad faith caused. While Haeger addressed fee sanctions rather than evidentiary sanctions, its recognition of the court's inherent bad-faith authority underpins the terminating sanction analysis in severe spoliation cases.
Terminating sanctions are granted only when lesser remedies are inadequate to cure the prejudice and the spoliating party's conduct was sufficiently culpable. Courts look at whether the conduct was willful or in bad faith, whether the plaintiff was prejudiced, and whether lesser sanctions were considered and found inadequate. A pattern of non-compliance with discovery obligations, combined with destruction of evidence, makes a stronger terminating sanction case than a single instance of document loss.
PI-Specific Spoliation Scenarios
The most frequently litigated spoliation issues in personal injury practice involve:
- Commercial vehicle EDRs: carriers who allowed normal data overwrite cycles to destroy EDR crash data after receiving a preservation demand, or who directed mechanics to clear fault codes that would have reflected the pre-crash vehicle condition
- Premises surveillance: facilities that routinely retained footage for 30 days and deleted it without suspending the deletion cycle after the incident was reported or a preservation demand was received
- Product destruction: defendants who repaired, scrapped, or returned a product to the supply chain after a product liability claim arose, making independent expert inspection impossible
- Medical device return: implantable medical device defendants who took possession of a retrieved device through a medical device registry and destroyed it before plaintiff's expert could inspect it
- Cell phone data: defendants who performed factory resets, replaced phones, or permitted cloud backup deletion after the duty attached
Document the spoliation in the record immediately. Issue subpoenas for backup systems, metadata logs, and communication records about the destruction. Depose the IT personnel, the driver, the adjuster, and anyone who had knowledge of or authority over the evidence preservation process. The spoliation motion is built from deposition admissions, preserved emails about the decision not to retain, and expert testimony about what the destroyed evidence would have shown. For how spoliation sanctions affect case valuation and settlement leverage, see case law and settlements coverage of discovery sanction cases. For the initial evidence preservation demand workflow and timing, see the pre-suit investigation guidance in practice operations. For spoliation of EDR and dashcam data in commercial vehicle cases, see the evidence preservation framework in truck and motorcycle practice coverage.