Spoliation of Evidence in California.

Overview

When evidence is destroyed or lost, it can devastate your case, or help it. This guide covers preservation duties, litigation holds, and the remedies available when evidence is spoliated.

The Duty to Preserve Evidence

When the Duty Arises

The duty to preserve evidence arises when a party knows or reasonably should know that the evidence may be relevant to pending or future litigation. This duty exists independent of any discovery request or court order.

The duty is triggered by:

• Filing or service of a lawsuit
• Receipt of a demand letter or claim
• Receipt of a litigation hold notice
• Knowledge of an incident likely to result in litigation
• Reasonable anticipation that litigation may occur
• Government investigations or regulatory proceedings

Scope of the Duty

The duty to preserve extends to all evidence that may be relevant to the anticipated or pending litigation. This includes:

• Physical evidence (vehicles, products, premises conditions)
• Documents (reports, communications, policies, records)
• Electronic evidence (emails, texts, GPS data, surveillance video, social media)
• Witness statements and recorded statements
• Photographs and video recordings
• Data from electronic systems (event data recorders, access logs, inventory systems)
• Expert materials and test results

Who Has the Duty

The duty to preserve evidence applies to:

1. Parties to the litigation -- both plaintiff and defendant
2. Agents of the parties -- employees, contractors, and representatives
3. Third parties with control over evidence -- in some circumstances, third parties who are on notice of the litigation may have preservation obligations
4. Attorneys -- attorneys have an independent obligation to advise clients of preservation duties and implement litigation holds

Litigation Holds

Implementing a Litigation Hold

A litigation hold is a directive to preserve all potentially relevant evidence. It should be:

• [ ] Issued immediately when litigation is anticipated or filed
• [ ] Directed to all custodians of potentially relevant evidence
• [ ] Specific about the types of evidence to be preserved
• [ ] Clear about the prohibition on destruction, alteration, or deletion
• [ ] Documented in writing with confirmation of receipt
• [ ] Periodically refreshed to ensure ongoing compliance
• [ ] Monitored to confirm that routine destruction practices are suspended

Litigation Hold Letter Content

A proper litigation hold letter should include:

1. Identification of the litigation (case name, nature of claims)
2. Categories of evidence to be preserved (with specific examples)
3. Time period for relevant evidence
4. Instruction to suspend all routine document destruction policies
5. Instruction to preserve electronic data (including backup tapes, archived data, and metadata)
6. Warning that failure to preserve may result in sanctions, adverse inferences, and personal liability
7. Contact information for questions about the hold
8. Acknowledgment requirement -- the custodian must confirm receipt and compliance

Sending Preservation Demands to Opposing Parties

As plaintiff's counsel, send preservation demand letters early and often:

Evidence Most at Risk of Spoliation in PI Cases

Evidence Type	Typical Retention Period	Urgency
Surveillance/security camera footage	7-30 days (auto-overwrite)	CRITICAL -- demand within 24-48 hours
Dashcam/body cam video	Variable (may overwrite)	CRITICAL -- demand immediately
Vehicle EDR (black box) data	Until overwritten by new event	HIGH -- demand before vehicle repair
Cell phone data (texts, GPS)	May be deleted by user	HIGH -- demand preservation immediately
Social media posts	May be deleted by user	HIGH -- screenshot and demand preservation
911 recordings	90-180 days (varies by agency)	MEDIUM -- subpoena promptly
Employee personnel files	Varies by employer policy	MEDIUM -- demand preservation
Maintenance/inspection records	Varies by company policy	MEDIUM -- demand preservation
Email/electronic communications	Varies by retention policy	MEDIUM -- demand suspension of deletion
Physical evidence (products, premises)	May be repaired/replaced	HIGH -- inspect and photograph immediately

Sanctions for Spoliation

Available Remedies

California courts have several remedies available for spoliation of evidence:

Remedy	Standard	Effect
Adverse inference instruction	Willful or negligent destruction	Jury may infer evidence was unfavorable to spoliator
Issue sanctions	Willful destruction	Designated facts deemed established
Evidence sanctions	Willful destruction	Preclusion of spoliator's evidence on affected issues
Terminating sanctions	Egregious/willful destruction	Dismissal or default judgment
Monetary sanctions	Any level of culpability	Costs and attorney's fees related to the spoliation
Separate tort action	Intentional destruction by third party	Independent cause of action for damages

The Spoliation Spectrum

Proving Spoliation

To obtain spoliation sanctions, the moving party must generally establish:

1. Evidence existed that was relevant to the issues in the case
2. The spoliating party had a duty to preserve the evidence
3. The evidence was destroyed, altered, or lost while the duty existed
4. The destruction was at least negligent (or willful/in bad faith for stronger sanctions)
5. The moving party suffered prejudice from the loss of evidence

Adverse Inference Instructions

CACI 204: Willful Suppression of Evidence

The primary jury instruction for spoliation is CACI 204, which provides:

You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.

Requirements for CACI 204

To obtain a CACI 204 instruction, the requesting party must show:

• The evidence was intentionally concealed or destroyed (mere negligence may be insufficient for the full instruction)
• The evidence was relevant to a material issue in the case
• The destroying party had an obligation to preserve the evidence
• The destruction was not adequately explained by innocent reasons

Alternative Instructions

In addition to or instead of CACI 204, courts may give:

• CACI 203 (Failing to Explain Evidence): Applicable when a party fails to explain evidence that would naturally be within their knowledge
• Custom instructions: Tailored to the specific spoliation at issue, directing the jury to draw specific inferences about the lost evidence

Third-Party Spoliation

The Independent Tort of Spoliation

California law recognizes a limited tort action for intentional third-party spoliation of evidence. Under Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, the California Supreme Court held:

• There is no tort for first-party spoliation (i.e., a litigant who destroys their own evidence -- remedy is through discovery sanctions)
• A third-party who intentionally destroys evidence relevant to pending or anticipated litigation may be liable in tort
• However, the tort is narrow and requires intentional (not negligent) destruction

Elements of Third-Party Spoliation Tort

1. Pending or probable litigation in which the plaintiff was a party or anticipated litigant
2. Knowledge by the third party of the pending or probable litigation
3. Intentional destruction or concealment of evidence by the third party
4. Disruption of the plaintiff's ability to prove their case
5. Damages resulting from the inability to prove the underlying claim

Practical Alternatives to the Spoliation Tort

Because the spoliation tort is narrow, consider alternative remedies:

• Sanctions against the party responsible for the third party (if the third party was acting as an agent)
• Adverse inference instructions based on the party's failure to preserve evidence in the third party's control
• Subpoena enforcement -- if a subpoena was issued and the third party destroyed evidence, contempt proceedings may be available
• Negligence claims against the third party for failure to preserve evidence they had a duty to maintain (e.g., a property owner's duty to maintain surveillance footage)

Electronic Evidence Preservation

Unique Challenges of ESI

Electronic evidence presents special preservation challenges:

Challenge	Description	Best Practice
Auto-deletion	Systems routinely purge data on schedules	Suspend all auto-deletion immediately
Overwriting	New data overwrites old (backup tapes, surveillance loops)	Isolate and protect backup media
Metadata alteration	Opening or copying files can change metadata	Use forensic imaging to preserve
Cloud storage	Data may be stored on third-party servers with retention limits	Identify cloud providers and demand preservation
Device replacement	Phones, computers replaced on upgrade cycles	Preserve old devices before replacement
Encryption	Encrypted data may become inaccessible if keys are lost	Preserve encryption keys alongside data

Best Practices for ESI Preservation

• [ ] Forensic imaging: Create forensic images of hard drives and devices rather than just copying files
• [ ] Suspend auto-deletion: Immediately disable all automatic deletion, archiving, and purging functions
• [ ] Preserve backup media: Identify and preserve all backup tapes, cloud backups, and archival media
• [ ] Document the chain of custody: Maintain a log of who handled the evidence, when, and what was done
• [ ] Use write-blocking technology: When imaging drives, use hardware or software write-blockers to prevent alteration
• [ ] Preserve metadata: Ensure all metadata (dates, authors, edit history) is captured and preserved
• [ ] Identify all custodians: Determine which individuals and departments may have relevant ESI and ensure their data is preserved

Social Media Preservation

The Growing Importance of Social Media Evidence

Social media has become a critical evidence source in PI cases -- for both plaintiffs and defendants. Key platforms include Facebook, Instagram, Twitter/X, TikTok, Snapchat, LinkedIn, and YouTube.

Plaintiff's Duty to Preserve Social Media

Defense Discovery of Social Media

Defense attorneys routinely seek:

• Public social media posts showing physical activities inconsistent with claimed injuries
• Posts about emotional state inconsistent with claimed emotional distress
• Check-ins and geotagged photos showing activities the plaintiff denies
• Messages discussing the lawsuit or injuries
• Pre-incident posts establishing baseline activity levels

Preserving Social Media Evidence from Opponents

To preserve opposing party social media:

• [ ] Screenshot all publicly visible posts, photos, and profile information immediately
• [ ] Use web archiving tools (e.g., Internet Archive Wayback Machine submissions) to create independent records
• [ ] Serve preservation demands requiring the opposing party to preserve all social media content
• [ ] Include social media in discovery requests (RFPs for all social media posts during relevant time period)
• [ ] If spoliation is suspected, subpoena the platform directly for account data (subject to Stored Communications Act limitations)

Surveillance and Dashcam Footage

Surveillance Footage

Surveillance footage is the single most time-sensitive evidence in many PI cases. Business surveillance systems typically overwrite footage on a 7-to-30-day loop. Preservation requires:

1. Immediate identification of all surveillance cameras that may have captured the incident or relevant conditions
2. Same-day preservation demand to the property owner or business
3. Follow-up to confirm the footage has been preserved
4. Subpoena if voluntary preservation is not confirmed
5. Inspection -- request to view the preserved footage as soon as possible

Vehicle Dashcam and EDR Data

Modern vehicles contain event data recorders (EDRs) that capture critical data in the seconds before and during a collision:

Data Type	Source	Preservation Notes
Speed at impact	EDR / black box	May be overwritten by subsequent driving events
Brake application	EDR	Download before vehicle is repaired
Steering input	EDR	Download using manufacturer-specific tools
Seatbelt status	EDR	Captured at time of deployment event
Throttle position	EDR	Captured in the seconds before impact
Dashcam video	Aftermarket camera	SD card may be removed or overwritten
Infotainment data	Vehicle system	May contain phone connection, navigation data
Telematics data	Fleet management systems	May be purged according to retention schedules

Spoliation Motions: Procedure and Strategy

When to File

Timing of spoliation motions depends on the remedy sought:

• Pre-trial sanctions motions: File when the spoliation is discovered, after meeting and conferring with opposing counsel
• Adverse inference instruction: Request during the motion in limine phase, 15-30 days before trial
• Trial motions: May be raised during trial if spoliation is discovered during testimony

Motion Components

A spoliation motion should include:

• [ ] Memorandum of Points and Authorities citing California spoliation law
• [ ] Declaration establishing the preservation duty, destruction, and prejudice
• [ ] Evidence of the preservation demand (copy of litigation hold letter)
• [ ] Evidence of the destruction (discovery responses, deposition testimony, forensic analysis)
• [ ] Evidence of prejudice -- how the lost evidence would have been relevant and helpful
• [ ] Proposed remedy -- specific sanctions or instruction requested
• [ ] Proposed jury instruction (if seeking adverse inference)

Arguing Prejudice

Prejudice is the most frequently contested element of a spoliation motion. To establish prejudice:

• Explain what the evidence likely would have shown based on circumstantial evidence
• Identify the issues the lost evidence bears upon
• Show that the evidence cannot be obtained from other sources
• Demonstrate that the loss was significant -- not merely cumulative of other evidence
• If possible, present secondary evidence suggesting the content of the destroyed evidence

Preventing Spoliation by Your Own Client

Client Education

At the initial intake meeting, educate your client about:

• [ ] The duty to preserve all evidence related to the incident
• [ ] Specific evidence to preserve (vehicle, clothing, photographs, medical devices)
• [ ] The prohibition on deleting, editing, or deactivating social media accounts
• [ ] The obligation to preserve cell phone data (texts, photos, GPS history)
• [ ] The consequences of spoliation (sanctions, adverse inferences, credibility damage, malpractice exposure)
• [ ] The firm's policy on evidence preservation

Firm Protocols

Implement firm-wide protocols for evidence preservation:

• [ ] Send the client a written preservation instruction letter at intake
• [ ] Document the preservation instructions in the client file
• [ ] Calendar follow-up reminders to confirm client compliance
• [ ] Obtain and image the client's cell phone data early in the case
• [ ] Photograph the client's vehicle and any physical evidence before repair or disposal
• [ ] Download and preserve the client's social media profiles

Related Pages

• Discovery -- Electronic discovery and preservation
• Depositions -- Deposing witnesses about evidence destruction
• Defense Medical Exams -- Preserving DME recordings
• Law and Motion -- Filing spoliation motions
• Trial Practice -- Adverse inference instructions at trial
• Requests for Admission -- RFAs on document authenticity and preservation

Cross-References

• Evidence Rules
• Discovery
• Motions in Limine
• Trial Practice
• Depositions
• Law & Motion

Common Questions

Sources & Legal Citations

1. California Code of Civil Procedure § 2023.010. Discovery misuse including spoliation.
2. CACI 204 — Willful Suppression of Evidence. Adverse inference instruction for spoliation.
3. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1. Spoliation remedies and standards.
4. Williams v. Russ (2012) 167 Cal.App.4th 1215. Duty to preserve and sanctions for spoliation.
5. New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403. Electronic evidence preservation requirements.
6. Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464. Spoliation as discovery abuse.