The inherent nature of the technology contributes to the ease with which records can be altered, deleted, misplaced or made inaccessible. Storing a massive volume of data on media that requires a computer to see it compounds the difficulties in finding and retrieving electronic records. The result is that companies may inadvertently expose themselves to a spoliation claim if their failure to maintain an effective electronic-management system frustrates the timely production of evidence. This analysis was created for the destruction of paper and other physical records. Applying it to electronic records raises difficult questions.
Mistaken keystrokes are common to most computer users.
There is hope. While even some mistaken conduct may cause a spoliation claim, established record-keeping practices may help to reduce any sanction meted out by the court. In one case, a business had a policy of reusing tapes of computer transactions. The opposing party requested some tapes which were produced. Because the opposing party did not follow up with additional requests, the business followed its routine practice of reusing the tapes, which effectively destroyed the information in tapes not previously produced.