How did the proclivity for anti-spoliation letters emerge? Such letters inform opposing parties or counsel not to destroy or dispose of evidence and make varying threats if the warning is not heeded. This letter is akin to one of those 50’s science fiction movies in which a spawn infects one human, and that human infected another human, and those humans infected others, until most humans are infected. Except here, the humans are merely lawyers and the infectious agent is a letter. One doesn’t need to routinely think of lawyers as mindless spawn to find this simile amusing. Further, I assume this anti-spoliation letter first emerged at a legal seminar–not to rag (too harshly) on the AAML but I strongly suspect it was an AAML seminar–and spread like the insidious infection it is.
I have three issues with such letters. First, they are unnecessary. Second, they don’t carry any legal authority and, to the extent they threaten legal sanctions for their violation, they potentially violate the code of professional conduct. Third, the ones I receive are so broad as to be literally impossible to comply with. This overbreadth concern heightens the risks of professional conduct violations and lessens the impact of any failure to comply.
As for the necessity of anti-spoliation letters, case law already establishes that adverse inferences can result from the deliberate destruction of evidence. See e.g. Kershaw Cty. Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 394, 396 S.E.2d 369, 372 (1990) (“when evidence is lost or destroyed by a party an inference may be drawn by the jury that the evidence which was lost or destroyed by that party would have been adverse to that party”). Absent a court order–which an anti-spoliation letter isn’t–a party cannot be held in contempt for destroying evidence. Absent a formal discovery request, it’s not clear that an adverse inference is even justified for destroying evidence absent some proof that the destruction of evidence was part of a deliberate attempt to hide evidence. As will be noted below, evidence gets destroyed all the time for completely innocent reasons. An attorney or party who wants evidence preserved should issue a request to produce or inspect rather than sending such letters. An attorney or party who REALLY wants evidence preserved should obtain a court order requiring its preservation.
To the extent spoliation letters threaten sanctions absent a court order, or even a formal discovery request, they possibly violate rules of professional conduct regarding “Truthfulness of Statements to Others” (Rule 4.1) and “Fairness to Opposing Party and Counsel” (Rule 3.4). Lawyers should not be threatening sanctions when there is no court order being violated. Lawyers should be especially mindful before threatening sanctions regarding anti-spoliation letters that are clearly overbroad. Yet I cannot recall seeing a spoliation letter than didn’t threaten sanctions for its violation.
Finally, such anti-spoliation letters routinely demand that all electronically stored data be preserved and further demand that such electronically stored data not be altered or erased. This blog is electronically stored data. It was altered myriad times during its drafting. One routinely deletes draft files and updates other files as one works on them. Simply rebooting a computer violates the demands of these anti-spoliation letters. Unless I purchased all new electronic devices and did all my work on these new devices, I could not work if I strictly complied with one of these letters. I find these letters’ combination of remarkable overbreadth with the threat of sanctions to be shocking. The attorneys who issue them are daring South Carolina’s Office of Disciplinary Counsel (ODC) to seek discipline against them.
For these reasons, I don’t issue anti-spoliation letters and think the letters I receive are ill-advised. If I like the issuing attorney I might ask what evidence he or she really needs preserved and advise my client to preserve it. If I don’t particularly care for opposing counsel, I send the letter to my client and tell the client it has no legal consequence.
I understand attorneys think they are aggressively representing their clients’ interests in issuing these letters but I think these letters are abominations.
It’s useful in the pre-litigation phase of personal injury when limited in scope. For example, a letter instructing that a totaled vehicle be preserved for inspection by an expert or that a surveillance video be preserved.
I struggle to understand how rebooting your computer would violate the demands of an anti-spoliation letter. Same with updating this blog. It’s quite the opposite, you would need to destroy digital files deliberately to violate the demands; then further reformat your hard drive and obscure the digital fingerprint that you left behind.