Preserving Evidence: The Importance of Avoiding Spoliation in Litigation
Introduction
After Donald Trump became President-elect to begin his second non-consecutive term as President of the United States, The Committee on the Judiciary sent this notice to Mr. Jack Smith, Special Counsel for the U.S. Department of Justice. This notice directed Mr. Smith to preserve all records, communications, and materials related to his office’s investigation into the events of January 6, 2021, when rioters stormed the U.S. Capitol to disrupt the certification of election results.
The Committee’s demand emphasized the importance of safeguarding evidence and avoiding spoliation – a critical concept in litigation.
Spoliation and the Litigation Process
Spoliation – not spoilation – occurs when a party destroys, alters, conceals, or otherwise mutilates evidence relevant to ongoing or anticipated litigation. Put simply, spoliation is the equivalent of “cheating” in a lawsuit, undermining the fairness and integrity of the legal process. The disclosure process is one of the most critical and time-consuming stages of litigation. Under the Rules of Civil Procedure, parties to a lawsuit are required to disclose to their opponents all relevant documents. “Documents” means more that paper documents, it includes emails, text messages, voice recordings, spreadsheets, etc. If a document is relevant, it must be produced to the opponent, unless a document is protected by an established exception, such as privilege. This principle of full and honest disclosure is essential to the proper functioning of the civil justice system. The destruction of evidence jeopardizes the justice system’s integrity and prejudices other parties.
As the majority of documents today are stored electronically, the risk of both intentional and unintentional spoliation is higher than ever, underscoring the importance of understanding and complying with disclosure obligations.
The Law
Spoliation finds its origins in the legal system of ancient Rome. In Canada, spoliation jurisprudence stems from a 19th Century Supreme Court decision, St Louis v The Queen, 1896 CanLII 65 (SCC), and, according to the Court of Appeal for Ontario in SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation (2024 ONCA 675), the doctrine “has not changed much in the past 128 years”.
In St. Louis, the Court held that when it is shown that evidence has been intentionally destroyed the court will presume that the evidence was destroyed because it will hurt the spoliator’s case, unless they can somehow prove the contrary.
Spoliation is an evidentiary rule: where a party has intentionally destroyed evidence relevant to ongoing or contemplated litigation in circumstances, the judge or jury can draw the reasonable inference that the evidence was destroyed to affect the litigation.
To prove spoliation, a party must prove that:
- relevant evidence was destroyed;
- legal proceedings existed or were pending; and
- the destruction was an intentional act indicative of fraud or intent to supress the truth (Armstrong v. Moore, (2020 ONCA 49) at paragraph 37).
Crucially, proving intent requires demonstrating both the deliberate destruction of evidence for a bad reason.
The unintentional destruction of documents is not spoliation, but the caveat is that the unintentional destruction of documents may still attract sanctions or remedies (McDougall v Black & Decker Canada Inc., (2008 ABCA 353)).
Whether punitive damages may be awarded for spoiling evidence remains an unsettled question in Canadian jurisprudence.
The Ontario Court of Appeal, in Armstrong, declined to resolve whether spoliation alone could justify such damages, leaving the issue open for future cases.
Takeaways and Practical Considerations
The practical impacts of the doctrine are vast, especially considering the widespread computerization of records and the ease at which documents can be deleted.
If you are aware that a lawsuit may be started, and you represent a corporation as general counsel or act as a lawyer on retainer, it could be prudent to take proactive measures in the face of anticipated litigation. For instance, instructing the IT department to immediately suspend automatic deletion policies and protocols for emails and other electronic records is essential to ensuring compliance with preservation obligations.
If you suspect that the opposing party might fail to preserve evidence, or if you believe such a risk could arise, consider placing them on formal notice to safeguard relevant information. This step not only reinforces your position but also mitigates potential disputes over missing evidence.
Beyond these measures, one should think broadly about all possible sources of evidence, including text messages, cloud storage systems, and even physical documents that might be overlooked. A comprehensive preservation strategy is critical in today’s complex litigation environment.
If you require assistance on a commercial or civil litigation matter, please contact one of our commercial litigation lawyers.