What Is a Spoliation Motion and How Do You File One?

A spoliation motion is a written request asking the court to sanction an opposing party who destroyed, altered, or failed to preserve evidence they had a legal duty to protect. To win one, you have to prove four things: the other side owed a duty to preserve, the evidence is actually gone, it mattered to the case, and the loss happened through at least some degree of fault. The motion is filed with a supporting memorandum, backed by exhibits, and in federal court it requires a good-faith certification that you tried to resolve the dispute first. A Federal Judicial Center study found that where sanctions were imposed, courts granted an adverse inference instruction in 44% of cases overall and 57% of cases involving electronic data.

What Counts as Spoliation

Spoliation is broader than shredding documents the night before trial. It covers any destruction, alteration, or failure to preserve evidence a party had a duty to protect. Typical examples include wiping hard drives, deleting text threads, leaving auto-delete settings active after litigation became foreseeable, losing a defective product, and letting surveillance footage record over itself. The material has to have been relevant to the claims or defenses in the case; destroying unrelated records, however suspicious, is not actionable spoliation.

Courts separate intentional spoliation from negligent spoliation, and the distinction drives everything that follows. Deliberate destruction, like deleting a folder of incriminating emails after receiving a preservation letter, sits at one end. Carelessness, like never issuing a litigation hold or overlooking a data source, sits at the other. The spoliating party’s mental state controls how severe a sanction the court can impose.

The Four Elements You Must Prove

Every spoliation motion rises or falls on four elements:

Duty to preserve. The party that lost the evidence had an obligation to keep it when the destruction occurred, because litigation was pending or reasonably anticipated.
Loss of evidence. The information was actually destroyed or lost and cannot be recovered or replaced through other discovery.
Relevance. The missing material would have mattered to the claims or defenses. Vague suggestions that something useful might have existed are not enough.
Culpable state of mind. The responsible party acted with some degree of fault, whether negligence or intent.

That last element is where most motions are won or lost. Direct evidence is ideal: emails discussing destruction, IT logs showing deliberate deletion, deposition testimony that no litigation hold was ever implemented despite counsel’s instructions. Circumstantial evidence can also carry the day. A pattern of selective preservation, where helpful documents survived but harmful ones vanished, supports an inference of intentional conduct.

When the Duty to Preserve Attached

The duty to preserve kicks in when litigation is either pending or reasonably anticipated. Filing suit obviously triggers it, but the obligation can arise much earlier: a demand letter, an insurance claim, or an internal recognition that a lawsuit is coming. In the Zubulake decisions, a supervisor’s internal admission that he thought an employee might sue was enough to trigger the duty before any formal legal action.¹

Once the duty attaches, a party must safeguard documents, electronic data, physical objects, and anything else relevant to the anticipated claims or defenses. Routine document destruction policies have to be suspended for anything that might fall within scope. The obligation lasts until the litigation is fully resolved. Perfection is not required; courts expect reasonable, proportional efforts.²

If you can send a preservation letter before filing suit, do it. A written demand that specifically identifies the data at risk, naming particular accounts, messaging platforms, or auto-delete settings, creates a paper trail that makes culpability much easier to prove later. The more specific the demand, the harder it becomes for the other side to argue the destruction was inadvertent.

Rule 37(e) and the Two Tracks for Electronic Evidence

In federal court, Rule 37(e) of the Federal Rules of Civil Procedure controls spoliation of electronically stored information. The rule creates a two-track system based on the spoliating party’s intent, and understanding which track your facts fit determines what sanctions you can realistically ask for.

Both tracks share three threshold requirements. The electronic information must have been something that should have been preserved for litigation, the party must have failed to take reasonable steps to preserve it, and it must be unrecoverable through other discovery.²

Track One: Prejudice Without Intent

Under Rule 37(e)(1), if a party failed to take reasonable steps to preserve electronic information and that failure caused prejudice, the court may order measures “no greater than necessary to cure the prejudice.”² Intent is not required; negligence can be enough. But the remedies are limited. The court might allow additional discovery, permit testimony about the lost evidence, or require the spoliating party to pay costs. What it cannot do under this track is give the jury an adverse inference instruction or dismiss the case.

Track Two: Intent to Deprive

Under Rule 37(e)(2), if the court finds the party acted with intent to deprive the other side of the evidence, the full range of severe sanctions becomes available. The court may presume the lost information was unfavorable, instruct the jury to draw that presumption, or enter default judgment or dismissal.² This track does not require a separate showing of prejudice. The intent finding alone justifies the harshest penalties.

Physical Evidence Sits Outside Rule 37(e)

Rule 37(e) applies only to electronically stored information. When a party destroys or loses physical evidence such as a defective product, paper records, or surveillance tapes, federal courts rely on their inherent authority to sanction abusive litigation conduct. The specific framework of 37(e)(1) and 37(e)(2) does not apply, and the court has broader discretion. If your motion involves tangible evidence, you are arguing under the court’s inherent power rather than the rule, which changes both the standard and the available remedies.

State Court Variations

State courts are not bound by Rule 37(e), and many apply different standards. Some states allow severe sanctions like adverse inference instructions for gross negligence, without requiring proof of intent to deprive. Others follow something closer to the federal model. The same set of facts can produce an adverse inference instruction in one state court and only a monetary sanction in another.

A handful of states, including Alabama, Alaska, Florida, Idaho, and Montana, recognize spoliation as an independent tort, meaning you can sue separately for the destruction of evidence rather than just seeking sanctions within the existing case. Florida, for instance, requires proof that the destruction significantly impaired your ability to prove the underlying lawsuit and caused damages. Most states that recognize the tort limit it to third-party spoliation. The majority of states do not recognize an independent spoliation tort at all.

Drafting and Filing the Motion

A spoliation motion is a written filing supported by a legal memorandum. The document has to accomplish four things: describe the lost evidence with specificity, explain its relevance to your claims or defenses, establish that the other side had a duty to preserve, and present evidence of culpable conduct.

In federal court, Rule 37 requires a good-faith certification that you conferred or tried to confer with the opposing party before filing.² This is not optional. Filing without it gives the court an easy reason to deny the motion outright. Many local rules impose additional meet-and-confer requirements, so check your jurisdiction before filing.

Supporting exhibits should include the preservation letter you sent, if any, proof the other party was on notice of their duty to preserve, and any direct evidence of culpable conduct. Emails discussing destruction, IT records showing deletion after the duty attached, or deposition testimony revealing the absence of a litigation hold all strengthen the motion considerably. Tie the evidence loss to concrete prejudice. Explain exactly what you would have shown with the missing information and why no substitute exists.

When to File

There is no single federal deadline for a spoliation motion, but delay works against you. Courts generally expect these motions as soon as reasonably possible after you discover the facts supporting them. Waiting until the eve of trial to raise spoliation you knew about months earlier invites denial.

Before discovery closes. If you need additional discovery to replace the lost evidence, file before the cutoff or immediately after.
Before summary judgment. If you want evidentiary sanctions like an adverse inference instruction, filing before or alongside the summary judgment motion makes strategic sense. Raising spoliation for the first time at trial is a much harder sell.
Check the scheduling order. Some courts set specific deadlines for discovery motions in the Rule 16 scheduling order, and local rules may impose their own cutoffs.

What the Court Can Order

Courts calibrate sanctions to the severity of the spoliation and the degree of fault.³

Less severe remedies include:

Monetary sanctions. Ordering the spoliating party to pay the costs and attorney fees the moving party incurred in bringing the motion and conducting alternative discovery.
Additional discovery. Reopening or extending discovery so the moving party can try to reconstruct what was lost.
Evidentiary permissions. Allowing the moving party to present evidence and argument to the jury about the other side’s failure to preserve.

More severe remedies are reserved for intentional destruction:

Adverse inference instruction. The court tells the jury it may presume the lost evidence was unfavorable to the party that destroyed it. This was the most common severe sanction in the Federal Judicial Center study, granted in 44% of all sanctioned cases.³
Striking pleadings. Removing specific claims or defenses from the spoliating party’s case.
Default judgment or dismissal. Ending the case entirely in the moving party’s favor. This is genuinely rare. The Federal Judicial Center found it was imposed in only a single case in the study sample, and that involved tangible evidence rather than electronic data.³

Anticipating the Reasonable Steps Defense

The most powerful defense under Rule 37(e) is that the party took reasonable steps to preserve, even if some information was ultimately lost. The rule explicitly states that perfection is not required. Given the volume of electronic data modern organizations generate across dozens of devices and platforms, some loss is nearly inevitable even with genuine effort.²

Courts evaluate reasonableness by looking at several factors: whether the party issued a litigation hold, whether the hold reached the right people, whether compliance was monitored, and whether preservation efforts were proportional to the stakes. A small business with limited IT resources is held to a different standard than a multinational corporation with a dedicated e-discovery team. Routine auto-deletion that predated the litigation obligation is treated differently from auto-deletion that continued after the duty attached.

To overcome this defense, document specific failures. No hold was issued. The hold omitted key custodians. Relevant data sources were overlooked. Routine deletion continued after a preservation demand. The more granular your evidence of unreasonable conduct, the harder it is for the other side to hide behind general claims of good faith.

When the Destroyer Isn’t a Party

Sometimes the person who destroyed evidence is not a party to the lawsuit. A hospital discards medical records. A landlord demolishes a building. A former employer wipes a hard drive. Third-party spoliation raises distinct challenges because non-parties generally have no duty to preserve evidence simply because they know litigation exists between other people.

The most reliable way to impose a preservation obligation on a non-party is through a subpoena. Some courts have recognized that a properly served subpoena creates a duty to preserve, though the case law is less developed than the standards for parties. Where courts allow preservation subpoenas, they must be specific; a blanket demand to preserve everything indefinitely will not hold up. In limited circumstances, a third party’s destruction can be attributed to a party if the third party was acting in the party’s interest rather than independently.

1
United States Courts. Zubulake Revisited: Pension Committee and the Duty to Preserve
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 37
3
Federal Judicial Center. Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases