The Real Cautionary Tale

The mainstream trade press is using the case of the destroyed CIA tapes as a cautionary tale in preservation of tapes for businesses and the courts. But what I see as a great danger is that IT managers could get caught in the web of spoliation of evidence, and 'I was just following orders' is not going to cut it.

Lawyers and courts use the term spoliation in state and Federal procedure to refer to the withholding, hiding, or destruction of evidence relevant to a legal proceeding. This is a violation of the criminal law and is not new. Spoliation has two consequences: first the act may result in fines and jail time for the parties who engaged in the spoliation. Additionally, case law added a particularly nasty curve ball called the 'spoliation inference.' The spoliation inference is a negative evidentiary inference that a judge or jury can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: The 'finder of fact' can review all evidence uncovered in as strong a light as possible against the spoliator. There is no benefit of the doubt here.

For the IT manager, who is now very much an evidence manager at law, destruction of data must be planned and carried out according to established policies and procedures that can rebut the claim of spoliation. Destruction of data on an ad-hoc basis sews the seeds of litigation disaster.

We sometimes like to make fun of CEOs, saying their priorities are to make money, to save money, and to stay out of little orange jumpsuits. IT management priorities now have to include this last, sad priority.