Spoliation
Definition
The destruction, alteration, or concealment of evidence relevant to a legal proceeding. Spoliation can result in adverse inference instructions to a jury, sanctions, or dismissal of claims. Preventing spoliation is a primary objective of early engagement planning.
- Field
- Civil litigation, fraud examination
- Definition
- Destruction, alteration or concealment of evidence relevant to proceedings
- Consequence
- Adverse inference instructions, sanctions, or dismissal of claims
- Prevention tool
- Litigation hold notices issued at engagement planning
Common questions
Does spoliation always require intentional destruction of evidence?+
No. Many jurisdictions sanction negligent spoliation too, for example an automated email retention policy that deletes relevant messages after a duty to preserve arose. Courts look at whether a preservation duty existed and was breached, not only at intent.
What is an adverse inference instruction and why does it matter?+
It is a direction telling the jury they may assume the lost evidence would have been unfavourable to the party that failed to preserve it. This can be as damaging as producing the evidence itself, which is why early litigation holds are treated as a priority in engagement planning.
Related terms
- Predication
- The reasonable basis that justifies opening a fraud examination. The ACFE holds that no examination should begin without adequate predication, meaning a...
- Benford's Law Analysis
- A data analytics technique based on the observed distribution of leading digits in naturally occurring financial data. Significant deviations from the expected...
- Chain of Custody
- The documented history of possession, handling, storage and transfer of an exhibit. It supports traceability between collection and examination, while the significance...
- Engagement Scope
- The defined boundaries of a fraud examination: the organisational units, time period, transaction types, and evidence sources to be examined. Scope is...
- Forensic Imaging
- The process of creating a bit-for-bit copy of a digital storage device using specialist tools that do not alter the original. The...
- Legal Hold
- A legal hold is a preservation instruction intended to suspend relevant deletion or alteration when a preservation duty arises or an organisation...
- Scope Creep
- The gradual expansion of an engagement beyond its original boundaries, often without a corresponding adjustment to the fee, timeline, or privilege structure....
- Whistleblower Statement
- An allegation or tip from an individual with inside knowledge of suspected fraud. It often constitutes the predicate for a fraud examination...
- Working Hypothesis
- A precise, falsifiable statement of the fraud scheme suspected, derived from the predication. It names the scheme type, the suspected perpetrator or...
Explained in these topics
- Evidence Gathering Methods in Fraud ExaminationsThe destruction, alteration, or concealment of evidence after a duty to preserve it has arisen. Courts in most jurisdictions may draw adverse inferences agains...
- Predication and Engagement Planning in Fraud Examinations