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Experience, Not Logic: Adapting Spoliation Doctrine To The Brave New World Of Digital Documents, Roni A. Elias

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The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.

The doctrines governing how courts respond to spoliation are well established. But these venerable rules were mostly devised for a discovery process that involved the production of paper documents. The information revolution that accompanied the dramatic expansion of computers to produce and store every kind of document forever transformed the discovery process. As computer …