Glossary
Spoliation
Also called: destruction of evidence
Spoliation is the destruction, alteration or failure to preserve evidence that is relevant to litigation. The duty to preserve arises when proceedings become reasonably anticipated rather than when they are filed, which is considerably earlier than most organisations assume it does.
Spoliation explained
When the duty begins
Not at filing. It begins when litigation becomes reasonably anticipated, which can be a complaint letter, a regulatory enquiry, a serious internal incident report, or a demand from a counterparty. From that point, routine destruction of potentially relevant records has to stop.
Why routine destruction is not a defence
A perfectly good retention schedule, applied automatically, will destroy relevant records after the preservation duty has arisen — and "the system deleted it on schedule" is not an answer. This is the strongest argument against automated deletion and in favour of holds that override the schedule automatically rather than depending on someone remembering.
Consequences
Courts have responded with adverse inference instructions — allowing a jury to assume the missing evidence was unfavourable — as well as monetary sanctions, cost orders and, in serious cases, default judgment. The sanction is frequently worse than the evidence would have been.
What good practice looks like
A route by which anyone who notices a potential claim can escalate quickly. A hold applied by scope rather than by file, so it captures records nobody thought to list. And a hold that custodians cannot release, because a hold the subject can lift is not a control.
After the hold
Release is recorded, and the underlying retention rule resumes. Records do not become permanent because they were once held.
FAQ
Spoliation: common questions
Does spoliation require intent?
Not necessarily. Negligent failure to preserve can attract sanctions, though intentional destruction generally attracts more severe ones. Either way the absence of the evidence is the problem.
How quickly must a hold be applied?
As soon as the duty arises, which is why the escalation route matters more than the mechanism. A hold applied a month after a complaint letter may already be too late.
Related terms
- Audit trailAn audit trail is an append-only record of every action taken on a document — views, downloads, edits, approvals, permission changes and deletions — with the acting user, timestamp and affected version.
- Chain of custodyChain of custody is the documented, unbroken record of who has held, accessed or altered an item of evidence, and when.
- DispositionDisposition is what happens to a record when its retention period expires: destruction, transfer to an archive, or a decision to extend.
- Document controlDocument control is the discipline of ensuring only approved documents are in use, superseded ones cannot be mistaken for current, and every change is authorised and recorded.
- Information governanceInformation governance is the framework of accountability, policies and controls determining how an organisation creates, uses, retains and disposes of its information.
- Legal holdA legal hold suspends the routine destruction of records that may be relevant to litigation, an investigation or an audit.
Última revisión: 28 de agosto de 2026. Browse the full glossary.