Technology continues to shape the way we practice law, as it has over the last half century. Evolving technological advancements, while welcome in some respects, tend to make it easier to alter or conceal evidence – whether intentionally or by mistake. One resulting concern is spoliation of evidence, which constitutes an ethical violation (among other violations) and can have serious repercussions.

Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation. (Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.) Notably, spoliation includes any action which attempts to hide or conceal evidence.

Spoliation is condemned because it “can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 8.) Destroying evidence also increases the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both. (Id.) While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishments, including monetary, issue, evidentiary, and terminating sanctions. (Code Civ. Proc., §§ 2023.010, subd. (d), 2023.030, subds. (a)-(d); Cedars–Sinai, supra, 18 Cal.4th at 12.) Spoliation is deemed a “serious form of discovery abuse.”  (Victor Valley Union High Sch. Dist. v. Superior Ct. (2023) 91 Cal.App.5th 1121, 1139.)

Moreover, spoliation is unethical, and a lawyer who fails to produce relevant evidence or compromises existing evidence could be subject to State Bar discipline. For example, Rule 3.3(a) of the California Rules of Professional Conduct states that a lawyer shall not “knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or. . . offer evidence that the lawyer knows to be false.”  Rule 3.4 adds that a lawyer shall not “unlawfully obstruct another party’s access to evidence . . . or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value,” “suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce,” or “falsify evidence.” Additionally, Business and Professions Code § 6068(d) states it is the duty of an attorney “[t]o employ means only consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

From a practical standpoint, do not hide those emails, delete those texts, or fail to produce business records if you have an obligation to produce them, and do not conduct destructive testing of evidence without notifying all counsel in advance. Moreover, it is recommended to have a conversation with your client upon retention in which you discuss the client’s obligation to preserve evidence, including all electronic communications. One good example is advising a client to not delete their social media accounts or any posts that could possibly relate to the case.  Generally, clients may set their social media accounts to inactive or private – as long as doing so does not result in their deletion. It is also recommended to discuss with your client early on in the representation the repositories of client hard-copy documents and electronic files, so that the documents are preserved and available for review for possible production.