TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1101. Spoliation or Destruction of Evidence
Authority to Impose Sanctions. A judge has the discretion to impose sanctions for the spoliation or destruction of evidence, whether negligent or intentional, in the underlying action in which the evidence would have been offered.
Spoliation Defined. Spoliation is the loss, destruction, alteration, concealment, mutilation, or failure to preserve of evidence by a person under a duty to preserve it, at a time when that person knew or reasonably should have known that the evidence might be material to a pending or reasonably foreseeable proceeding.
The Duty to Preserve; When It Attaches.
When It Attaches. The duty to preserve attaches at the earliest of the following:
the commencement of the action, or the arrest or charging of the person;
service of a complaint, a summons, a subpoena, a demand, or a notice of claim;
the time at which the person knows, or reasonably should know, that an action or prosecution is contemplated or that a claim will be made;
the receipt of a request to preserve, made by a party or by the State, which identifies with reasonable particularity the material to be preserved; and
as to the State in a criminal case, the time at which an investigation begins into the conduct charged.
Upon Whom. The duty binds a party, a person acting for a party, and a person who anticipates being a party. It binds the State and each of its agencies in a criminal prosecution and in a civil action to which the State is a party. It does not bind a witness or other person who is not a party, except as an order of the court or a subpoena imposes it.
Scope. The duty extends to material within the person’s possession, custody, or control which is relevant to a claim, a defense, or a charge, including material which is unfavourable to that person. Control includes the practical ability to obtain the material, including material residing in the person’s own account and material in a server or channel which the person owns, administers, or moderates. The duty does not extend to material the person does not control, or to duplicative material.
What the Duty Requires. A person under the duty shall take reasonable steps to preserve the material, including suspending any automatic deletion within the person’s control; exporting or capturing material subject to a retention limit of the platform on which it resides; and refraining from deleting or editing messages, from purging, archiving, or deleting a channel, thread, or server, and from abandoning or deleting an account in which relevant material resides.
Culpability. For the purposes of this rule the court shall determine whether the spoliation was:
Negligent — the person failed to take reasonable steps to preserve the material;
Reckless — the person was aware of a substantial risk that the material would be lost and disregarded it; or
Intentional — the person destroyed, deleted, altered, or concealed the material, or permitted its loss, with knowledge of its relevance, and where the sanction sought is one described in Rule 1101(7)(f) or Rule 1101(8), with the intent to deprive another party of its use in the proceeding.
Prejudice. The court shall determine the prejudice caused by the spoliation, considering the relevance and importance of the lost material to the claims, defenses, or charges; whether the material can be restored or replaced through other discovery or other evidence; the availability of secondary evidence of its content; and the extent to which the loss impairs the opposing party’s ability to present or to meet a case.
Findings Required. The court shall not impose a sanction under this rule without making findings, stated upon the record, as to the existence and time of attachment of the duty to preserve; the fact and manner of the loss; the culpability of the person responsible, determined under Rule 1101(4); and the prejudice, determined under Rule 1101(5).
Sanctions Available. Upon making the findings required by Rule 1101(6), the court may impose a sanction no greater than necessary to cure the prejudice, including:
excluding evidence, testimony, or an expert opinion which depends upon the lost material or upon the spoliating party’s account of it;
precluding the spoliating party from supporting or opposing a designated claim, defense, or charge;
permitting the opposing party to offer secondary evidence of the content of the lost material under Rule 1004, and permitting evidence and cross-examination concerning the circumstances of the loss;
taking a designated fact as established for the purposes of the proceeding;
giving the adverse-inference instruction provided by Rule 1101(8);
striking a pleading in whole or in part, dismissing the action or a claim, entering a default judgment in a civil action, or, in a criminal case, dismissing a charge; no provision of this rule authorises the entry of a criminal default, which 6 R. Stat. § 131.501(i) permits only upon a defendant’s failure to appear as required;
awarding the reasonable expenses, including attorney’s fees, caused by the loss and by the motion; and
treating the conduct as contempt of court.
Limit. The court shall not impose a sanction which requires the Clerk or the electronic filing system to seal, redact, remove, amend, or withdraw a filing or a document upon the docket, the system providing no such capacity. Where material upon the docket is the subject of a sanction, the remedies available are a corrected refiling, which bears its own filing date; an order binding the persons who possess the material, enforceable by contempt; and the sanctions stated in this subdivision.
Adverse-Inference Instruction; Prerequisites.
Prerequisites. The court shall not permit an adverse inference to be drawn or argued from the loss of evidence unless it finds:
that the evidence once existed and was within the control of the party against whom the inference is sought;
that the duty to preserve had attached to that party before the loss;
that the party lost, destroyed, altered, or failed to preserve the evidence; and
that the evidence would have been relevant to a claim, defense, or charge in the proceeding.
Permissive and Mandatory Inference. Upon a finding of negligence or recklessness, the court may instruct that the fact finder may infer that the lost evidence would have been unfavourable to the party responsible for its loss. The court shall not instruct that the fact finder must so infer, and shall not presume the content of the lost evidence, unless it finds that the party acted with the intent to deprive another party of the evidence’s use in the proceeding.
Bench Trial. In a bench trial the court shall state upon the record the inference it draws and the findings under Rule 1101(8)(a) upon which it rests, and shall afford the parties an opportunity to be heard before drawing it.
Argument by Counsel. Counsel shall not argue an adverse inference from the loss of evidence without first obtaining the court’s approval. Where approval is granted, the argument shall be confined to the inference the court has permitted.
Electronically Stored Information.
Application. This rule applies to the loss of electronically stored information, including messages deleted or edited in a Discord server channel, thread, or direct-message conversation; a channel, thread, or server purged, archived, or deleted; an account abandoned, deleted, or made inaccessible; an in-game record lost, overwritten, or reset; a dispatch or radio recording not preserved; and a capture or recording deleted, trimmed, or overwritten.
Conduct Bearing on Intent. In determining whether a party acted with the intent to deprive, the court may consider whether, after the duty to preserve attached, the party deleted messages; edited a message so as to alter its content; purged, archived, or deleted a channel, thread, or server; left, abandoned, or deleted an account in which relevant material resided; permitted an automatic deletion within its control to operate; changed the username by which the account was known; or cropped, edited, or annotated a capture so as to omit material context and failed to preserve the original.
Loss Not Attributable to the Party. No sanction shall be imposed for the loss of material which the party did not control, including material held solely by the operator of a platform, material removed by the retention policy of a platform which the party could not suspend, and material lost by the failure of a platform. The party asserting that the loss was not attributable to it bears the burden of showing the circumstances of the loss.
Restoration or Replacement. Where the lost material can be restored or replaced through other discovery, from another participant’s account, or from the record of the proceeding communications, the court shall order that course before imposing a sanction under Rule 1101(7)(f) or Rule 1101(8)(b).
Spoliation by the State in a Criminal Case. Where the State, or an agency or officer of the State, loses, destroys, or fails to preserve evidence to which the duty stated in Rule 1101(3) had attached, the court shall determine the prejudice to the defendant and may impose any sanction stated in Rule 1101(7), including the exclusion of related evidence, the taking of a fact as established, an instruction under Rule 1101(8), and dismissal of a charge where no lesser sanction can cure the prejudice. Evidence of the loss and of the circumstances in which it occurred is admissible under Rule 1104.
Spoliation by a Non-Party. Where evidence is lost by a person who is not a party, no sanction shall be imposed upon a party. The court may nonetheless permit secondary evidence of the content of the lost material under Rule 1004, and may permit evidence and argument concerning the loss where it is relevant to a fact in issue.
Procedure.
Motion. A sanction under this rule is sought by motion, which shall identify the material lost, the ground for asserting that the duty to preserve had attached, the evidence of the loss, the prejudice claimed, and the sanction sought. The motion shall be made as soon as practicable after the movant learns of the loss, and in a civil action no later than the pre-trial conference except upon a showing of good cause.
Hearing. The court shall afford the person against whom a sanction is sought notice and an opportunity to be heard, which may be afforded in the proceeding communications. The court may receive evidence upon the motion, and in doing so is not bound by these rules except those of privilege, as Rule 104(1) provides.
Own Initiative. The court may proceed under this rule on its own initiative, after notice and an opportunity to be heard.
Timing of the Ruling. The court may rule before trial, at trial, or after the close of the evidence. Where the court defers its ruling, it shall preserve the parties’ ability to offer proof upon the question.
Relation to the Rules of Procedure. Rid. R. Civ. P. 26.3(7) governs sanctions for the failure to preserve electronically stored information which should have been preserved for discovery in a civil action, and Rid. R. Crim. P. 14 governs the disclosure obligations of the parties in a criminal case. This rule governs the spoliation or destruction of evidence in the action in which the evidence would have been offered. Where this rule and Rid. R. Civ. P. 26.3(7) apply to the same conduct, the court shall not impose duplicative sanctions.
Criminal Liability Not Affected. Nothing in this rule limits the prosecution of a person who intentionally, recklessly, or negligently withholds, hides, alters, fabricates, or destroys evidence relevant to a legal proceeding, as R.C.C. § 2.11 provides, or the referral of such conduct by the court to the appropriate prosecuting authority or to the bar.