Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and can significantly impact a litigation. Understanding how courts determine the appropriate spoliation sanction to impose is essential when this issue arises.

Courts have two sources of authority for sanctioning spoliation of evidence. Under the rules of civil procedure, courts have broad discretion to impose a variety of sanctions against a party that fails to produce evidence in violation of the civil rules. The primary limitation on this authority is that the discovery rules apply only to acts of spoliation that occur during the pendency of a lawsuit or following a court order. Courts also rely upon their inherent power to control the administration of justice to sanction pre-litigation spoliation. This authority allows courts to preserve their independence and integrity, since the destruction of evidence inhibits a court's ability to hear evidence and accurately determine the facts.

Courts have significant latitude in deciding the appropriate discovery sanction. While there is no rigid test for this determination, the choice of sanctions will usually be guided by the “concept of proportionality” between the offense and the sanction. So, courts generally balance several factors to ascertain the appropriate sanction, including: the culpability of the spoliating party; the prejudice to the nonoffending party; the degree of interference with the judicial process; whether lesser sanctions will remedy the harm and deter future spoliation; whether evidence has been irretrievably lost; whether there was an obligation to preserve the evidence; the practical relevance or importance of the evidence; the potential for abuse; and whether sanctions will unfairly punish a party for attorney misconduct. Courts generally select the least onerous sanction corresponding to the willfulness of the destruction and the resulting prejudice.