Spoliation
Destruction or loss of evidence — and the sanctions courts can impose when the other side destroys what you need.
What It Is
Spoliation is the destruction, alteration, or failure to preserve evidence that is relevant to litigation. In § 1983 cases, this often involves body camera footage, dashcam recordings, dispatch records, or electronic communications that are deleted or “lost.”
When the Duty to Preserve Arises
A party has a duty to preserve evidence when litigation is reasonably anticipated — not just when the lawsuit is filed. If you send a preservation letter, file a complaint with internal affairs, or the officer knows an incident may lead to a lawsuit, the duty attaches.
Federal Rule 37(e) — ESI Sanctions
For electronically stored information (ESI), Rule 37(e) provides two levels of sanctions:
If the loss causes prejudice (37(e)(1)): The court can order measures “no greater than necessary to cure the prejudice” — additional discovery, testimony about the lost evidence, jury instructions.
If the loss was intentional (37(e)(2)): The court can:
- Presume the lost information was unfavorable to the party that lost it
- Instruct the jury that it may or must draw an adverse inference
- Dismiss the action or enter default judgment
Proving Spoliation
You need to show:
- Evidence existed and was relevant
- The party had a duty to preserve it
- The evidence was destroyed or lost
- The loss was caused by the party’s failure to take reasonable steps to preserve it
- You were prejudiced by the loss
Practical Tips
- Send preservation letters early — Before filing suit if possible. Send to the police department, the city attorney, and the specific officers. Keep proof of delivery.
- Document what should exist — Note the cameras, officers, and timeframes. If footage later disappears, you can show what was expected.
- Request metadata — Even if video is “lost,” system logs may show when it was deleted and by whom.
- Subpoena cloud providers — Many departments use third-party BWC storage (Axon/Evidence.com). The provider may have copies even if the department claims deletion.
Key Cases
- Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) — Landmark ESI preservation and sanctions framework