Volume 85, No. 1, Fall 2012

The expansive growth of technology has drastically changed the way discovery is conducted in civil litigation. Litigants have always been required to preserve potentially relevant information to keep it available to the court and opponents as possible evidence. In a paper-based world, this was less problematic because documents were tangible and static—they generally existed in one place unless they were actively destroyed. Today, electronic information is easily created, altered, distributed, and destroyed. It exists in massive volume and requires great expense to manage and store. As a result, businesses frequently employ document management systems that automatically delete information after a relatively short period of time. The reasonable anticipation of litigation triggers an affirmative duty to halt typical destruction activity and to preserve potentially relevant information. Destruction or failure to preserve potentially relevant information after such a duty is triggered exposes a litigant to sanctions. Unfortunately, there is conflict among jurisdictions as to the scope of the duty to preserve evidence, and as to how egregious the breach of that duty must be before a court will impose case-altering sanctions.

Litigants are fearful of the potential for sanctions and, at the same time, uncertain about precisely what conduct will incur them. This leads parties to unreasonable behavior; they overpreserve electronically stored information at staggering financial costs. The uncertainty of the law has also dramatically increased the motions practice surrounding e-discovery sanctions. All of this has the cumulative effect of driving up the total cost of discovery and straining the very purpose of the Federal Rules of Civil Procedure: the just, speedy, and inexpensive determination of every action.

This Comment will reconsider contemporary spoliation doctrine through the lens of tort law and present new structures for spoliation analysis. Using tort principles, which promote the protection of individuals’ legally protected interests in light of the benefits to society as a whole, this Comment suggests that current spoliation doctrine can be adapted to encourage more reasonable primary behavior and more efficient litigation practice. Section II provides a historical perspective of the field of spoliation generally. Part III.A discusses the sources of power for a particular kind of remedy for spoliation—discovery sanctions. Part III.B describes the elements that must be established in various jurisdictions to prove sanctionable spoliation, while Part III.C explains the remedies available if those elements are proven. Part III.D describes consequences that have resulted from the uncertainty in this area of law, illuminating the need for a more consistent approach. Section IV provides a reconceptualization of spoliation doctrine by examining the principles and policies that underlie the theories of tort liability. Specifically, Part IV.A compares the underlying theories of tort liability with the theories that have historically justified spoliation. Finally, Part IV.B suggests three possible approaches for reorganizing spoliation doctrine to serve better the ultimate purposes of the Federal Rules of Civil Procedure and to benefit society as a whole. Part IV.C recommends the best application of each approach.