It is one of my favorite words – spoliation. It just slides right off of a litigator’s tongue. I have been litigating, either as direct claims over destruction of evidence or as an evidentiary inference, the concepts of spoliation for decades. If memory serves, the first time I handled it was defending a direct claim against an insurer over the insurer’s destruction, through testing, of a significant piece of evidence it had taken hold of from its insured after an accident, thereby (allegedly) interfering with the injured party’s ability to prove his tort suit against the insured. Later, I would litigate it in various forms as an evidentiary issue, including whether spoliation inferences were warranted, in a variety of types of cases. In my view, spoliation of evidence claims have been taken more and more seriously over the years, at least in Massachusetts state and federal courts, with the trend moving from great skepticism on the part of judges to such arguments, to grudging acceptance, to taking the issue quite seriously. Personally, I think both the increasing acceptance by courts of spoliation arguments and their increasing prevalence are due to the same thing, namely technology – texting, emails, Facebook, tweeting (or Xing, if that’s the new word for it) and the like have made evidence both more ephemeral than ever and also more likely to vanish (whether accidentally or deliberately).
I think this story on the subject in Massachusetts Lawyers Weekly fits this history and development to a T. You see in it the seriousness of judicial response to the issue at this point, after more than a decade of substantial judicial evolution concerning the issue, as well as the essential role technology plays in the issue.