spo·li·a·tion

spōlēˈāSHən/

noun

The intentional concealment destruction, alteration or mutilation of evidence, usually documents making them unusable or invalid.

- The Law Dictionary

Spoliation.

You’d think destroying evidence would be a no-brainer no-no. If someone shredded a file cabinet’s worth of documents while they were in the middle of a lawsuit, a reasonable person would expect the litigant to suffer consequences. A reasonable person would expect a judge to say:

“You destroyed evidence. We can’t know what you destroyed. Maybe it was relevant to this case. Maybe it wasn’t. But now we can never know. So I am going to hold that against you. I am going to presume the destroyed evidence would have hurt your case. This will be one of many factors in my decision. But it will be a strike against you. I will make an adverse inference against you.”

So why does it seem to be that when it comes to destroying digital evidence, litigants can get away with it?

That’s the unfortunate impression we are left with when we read the Ontario Superior Court of Justice’s decision in Nova Growth Corp. et al v. Andrzej Roman Kepinski et al. 2014 ONSC 2763 (CanLII)

It’s a long decision, but the part that deals with spoliation is relatively short. It begins at paragraph 288.

To summarize and simplify, the plaintiffs in this multi-million dollar case complained that the defendants had erased digital evidence. They asked the judge to make an adverse inference against the defendants. The judge rejected the plaintiffs’ request. He found there was no spoliation.

We see all sorts of problems with the decision. The judge, in our opinion, does not appear to grasp correctly either the law about spoliation or the technological details of the evidence before him. But we won’t go into a full analysis here.

The main lesson to draw from the decision is this: when there are signs that digital evidence has been destroyed, it is not enough to have a forensic expert do an analysis of the digital media in question. The analysis has to be prepared and presented in a way that addresses all of the elements of spoliation in a way that the court can understand. It has to cover not only the technology but the law as well. And it has to be lawyer-friendly and judge-friendly.

In other words, the forensic analyst needs to be law savvy. The lawyer directing the analyst needs to be technology savvy. And they both need to be courtroom savvy.

Of course we at ellwood Evidence would say that, because that’s just what we’re about: being law savvy, technology savvy, courtroom savvy.

But we see the fundamental problem with the decision in Nova Growth Corp. et al v. Andrzej Roman Kepinski et al. as being a failure to combine those three elements.

No one disputes that it is wrong to destroy evidence. But when it comes to digital evidence, it seems that lawyers and the courts still have a way to go in coming to grips with digital spoliation.