The amount of evidence that is produced in electronic format has increased substantially in the past several years. Given the prevalence of electronic data, and the ease with which it can be deleted or modified, it is not surprising that most of the recent federal-court cases in which sanctions have been imposed for spoliation of evidence have involved electronically stored information. However, as Wisconsin prepares to implement its new e-discovery rules, there are no reported Wisconsin cases that address the issue of spoliation involving electronically stored information. This is likely to change soon.
This article addresses spoliation of electronically stored information and endorses a standard for Wisconsin courts to follow in cases involving spoliation of e-evidence. First, the article outlines the law of spoliation in Wisconsin and highlights its similarity to well-settled principles of spoliation that are being applied throughout the United States. Next, the article identifies how Wisconsin’s spoliation law can be connected to existing federal law that provides a sophisticated formula for imposing sanctions when e-evidence is destroyed. Finally, the authors recommend that the Wisconsin courts borrow from this well-established body of law in deciding spoliation cases involving electronically stored evidence.
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Source: Wisconsin Lawyer
By: Timothy D. Edwards & Daniel P. McAlvanah
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