04/07/2026
Let’s talk about spoliation.
In litigation, it is the destruction or failure to preserve evidence that should have been kept once litigation is reasonably anticipated. In the digital world, this issue can become far more complicated than many people expect.
Digital evidence does not always disappear cleanly. Files may be deleted, devices reset, systems wiped, or data overwritten through normal system activity. Sometimes this happens intentionally. Other times it happens because a device continued to be used after it should have been preserved.
What makes digital spoliation particularly interesting is that the attempt to remove evidence often leaves behind its own traces.
Operating systems record activity constantly in the background. File system metadata, system logs, device connection records, and application artifacts can reveal what was happening on a device even after files are gone. In some cases, these artifacts can show that files once existed, when they were accessed, and what occurred on the system around the time they disappeared.
For attorneys, the key questions usually involve timing and preservation.
When did the duty to preserve arise?
What steps were taken to secure relevant devices and accounts?
Do the system artifacts support the narrative being presented?
Courts take these issues seriously, and the consequences can be significant. Sanctions, adverse inference instructions, and in some cases, striking of pleadings can follow when relevant digital evidence is destroyed.
In modern litigation, missing data does not always mean missing evidence.
Sometimes the absence of data becomes evidence itself.
FL PI Agency License No. A3500021