A 15 minute lecture designed as part of a panel presentation on security and legal issues for college and university IT professionals. It was delivered at the eCampus 2010 Conference at Dartmouth College on July 20, 2010.
3. Origins of the Concept of Spoliation
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Derived from a Roman procedural rule:
Omnia praesumuntur contra
spoliatorem
Which roughly translates as:
Let everything be presumed against the
spoiler of evidence
Origins of the Concept of Spoliation
5. Current Definition
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• The Destruction of Evidence Relevant to
an Issue in the Case
• Courts Typically Look for Evidence of
Bad Faith
• Other Grounds: Willful, Unreasonable,
or Gross Negligence
6. The Duty to Preserve
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• When Litigation Has Commenced
• According to Some Courts, When
Litigation Is Reasonably Likely
• Attorneys Have Duty to Advise Clients
to Preserve Data, Including
Discontinuing Routine Disposal
Schedules
7. Possible Sanctions
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• Civil Contempt/Monetary Sanctions
• Attorneys’ Fees for Litigating Issue
• Experts’ Fees for Reconstructing
Evidence
• Exclusion of Evidence/Testimony
Relating to Issue in Question
• Adverse Inference Instructions
• Dismissal of Claims or Defenses
• Possible Obstruction of Justice Claims
8. The Role of Computer Forensics
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• The Great Delete Myth, or, Oliver
North’s Dilemma
• Part of Discovery or Court-Ordered
• Regardless of How Initiated,
Increasingly Expensive
• A Seeming Endless List of Potential
Targets: Servers, Tapes, Drives, PCs,
Laptops, Mobile Devices, etc., etc.