Center for Legal & Court Technology Hosts Conference on Spoliation in the Cyber Age
The Center for Legal & Court Technology recently covered the topic of spoliation during their conference: “Spoliation in the Cyber Age.” The conference, sponsored by the Commonwealth Cyber Initiative (CCI), was held on January 31 in William & Mary Law School’s McGlothlin Courtroom, the world’s most technologically advanced educational courtroom.
Spoliation is defined as the act of ruining or destroying something. In law, spoliation specifically refers to the destruction or suppression of evidence. It can take many forms—intentional destruction, mutilation, or alteration of critical information. Spoliation may also result from negligent oversight, miscommunication between an attorney and their client, or simply a failure to foresee the course of potential litigation.
“Civil litigation customarily requires a great deal of discovery – making information/evidence available to opposing parties,” said Fredric Lederer in his introductory remarks. “Spoliation is the intentional destruction of or refusal to supply data subject to the discovery process, which includes deletion or hiding of social media data.”
The difficulty in raising a spoliation claim,” said Steven Steward ’24, a former CLCT student Fellow and now judicial law clerk, “is proving that it has happened.” In many cases, “it requires you to prove that a document that has been destroyed did, in fact, exist—often through circumstantial inference,”
Next, Donald Scotten, Vice Dean of the Gould School of Law at USC, explored the possibility of treating spoliation as a separate cause of action. Donald elaborated that spoliation as a tort is similar to legal malpractice—it exists alongside the underlying case – and can include outcomes such as adverse inference, and dismissal or summary judgment in favor of the moving party in bad faith cases.
Kevin Brady, 3M’s, Assistant General Counsel and Chief Discovery and Data Counsel, then addressed federal practice and court sanctions and explained that since 2015, the courts, having noted the increasing importance of electronic data, now apply stricter rules in assessing a party’s “reasonable steps” in avoiding spoliation. Although many instances of spoliation occur due to miscommunication between legal and technical teams, courts today are less lenient when spoliation results from simple mistakes that could or should have been avoided.
Richard Herrmann, CLCT’s Associate Director for Research, emphasized a Virginia Court case in which a lawyer advised a client to delete social media content and led a discussion of applicable professional ethics for lawyers.
During the conference, CLCT staff explained that the law of spoliation is not well known by most non-litigating lawyers, and although they lack data, they believe that most cyber technologists are unaware of it. This means that it is critical for lawyers to communicate adequately with cybersecurity specialists and other cs specialists, which CLCT staff believe is not now done adequately.
Accordingly, the staff believe that the conference material on the CLCT and CCI websites is critical for a wide range of cyber technologists as well as lawyers.
Chris Shenefiel, a CCI-funded research scientist who retired from CLCT in December, then addressed how cybersecurity failures can create spoliation and introduced the concept of “C.I.A. focus” in data management, which stands for “preserving Confidentiality, Integrity, and Availability of Data,” as guiding principles in the context of cybersecurity and system design to help prevent spoliation. He also noted that such principles will only be adequately executed if the company’s legal and technological teams work together.
An edited video version of this conference material will be posted on the CLCT website.