The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. The parties to litigation must be able to review the entire universe of relevant, and potentially relevant, evidence. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.
This Article examines the continuing effort by the drafters of the Federal Rules and the courts to determine how to regulate document destruction in the digital age. Part I of this Article reviews the basic problem of preserving digitized information. Part II considers how the courts traditionally treated breaches of the duty to preserve documents. In Part III, this Article examines how the Federal Rules were first amended to modify the method for imposing sanctions regarding the spoliation of digitized information. Part IV discusses cases in which courts struggled to implement the 2006 amendments to the rules against spoliation consistently. Finally, Part V reviews recently proposed modifications to the 2006 amendments, anticipating some of the problems that may arise with these proposed changes. This Article concludes that the difficulty courts and drafters face in defining culpable destruction is an inevitable consequence of the constantly shifting technological circumstances surrounding the creation and storage of information. Although it may be unsatisfying to live with significant uncertainty about the rules governing spoliation, it may be a necessity, and developing a comprehensive, consistent body of case law may be more a matter of measured evolution than that of brilliant insight or invention.