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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
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Benford's Law Analysis
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Chain of Custody
The documented chronological record of who collected, handled, transferred, and examined a piece of evidence. For digital evidence, chain of custody includes...
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 directive from legal counsel instructing relevant people within an organisation to preserve documents, data, and physical items that may be relevant...
Scope Creep
The unintended expansion of a penetration test beyond the agreed boundaries, either because testers follow a vulnerability chain into an out-of-scope system...
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...

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