Spoliation of Evidence in California: What Happens After Evidence Is Destroyed

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

Spoliation of evidence is the destruction or significant alteration of evidence, or the failure to preserve it for use in pending or future litigation. California courts have refused to create a separate tort for it. The remedies lie inside the existing case: discovery sanctions up to dismissal or default, and an inference from willful suppression. (Code Civ. Proc., § 2023.030; Evid. Code, § 413.) If the other side wiped a laptop, start by proving what it held. Kolmogorov Law, P.C. represents companies and their owners in business disputes.

Call (909) 235-6116 or contact us online to discuss evidence that was lost or destroyed in a business dispute.

No separate lawsuit

The California Supreme Court has twice refused to create a stand-alone claim. In an earlier decision it held that no tort cause of action lies against a party to a lawsuit for intentionally destroying or suppressing evidence when the spoliation was, or should have been, discovered before that lawsuit ended. It left open the case in which the victim neither knew nor should have known of the spoliation until after the decision on the merits. It then declined to recognize a tort for intentional spoliation by a third party. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464.) A Court of Appeal has reached the same result for negligent spoliation, by a party or a third party.

The remedies against a party are therefore applied in the case where the evidence was needed. When the duty to keep evidence begins, and how a company carries it out, are covered on our page about litigation holds.

First, prove what was lost

A sanctions motion rests on facts, and the party that lost the evidence may be the only one that knows them. Four questions organize the work.

What existed? Identify the device, account, mailbox, or file, and who used it.
When did it disappear, and how? A wiped drive, a replaced phone, and an expired retention period are different stories.
What did it probably contain? Other people's copies, server logs, and backups can show what passed through the lost source.
Can it be recovered? Forensic examination may restore data, and cloud services may keep copies the user forgot.

Discovery supplies the tools. A party may demand to inspect, copy, test, or sample electronically stored information in another party's possession, custody, or control. (Code Civ. Proc., § 2031.010, subd. (e).) Depositions of the people who handled the device, and of whoever manages the company's systems, fill in the timeline.

The sanctions motion

Destroying evidence in a pending case is a misuse of the discovery process. The court may respond with monetary, issue, evidence, or terminating sanctions. Our page on discovery sanctions explains each one and the notice the motion requires.

The statutes for each discovery method tie the severe sanctions to a disobeyed order. Spoliation is a recognized exception. A Court of Appeal affirmed a dismissal and held that a terminating sanction may be imposed in the first instance, without a prior order, in egregious cases of intentional spoliation. (Williams v. Russ (2008) 167 Cal.App.4th 1215.)

The same decision sets the burden. The moving party must first make a prima facie showing that the other side destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of its claim or defense. The burden then shifts. The party that destroyed the evidence must show that the loss caused no prejudice, for example because the material can be reconstructed from other sources. (Williams, supra, 167 Cal.App.4th 1215.)

The inference at trial

A second consequence plays out at trial. In deciding what inferences to draw against a party, the trier of fact may consider that party's willful suppression of evidence. (Evid. Code, § 413.) A related rule says that weaker evidence should be viewed with distrust when the party offering it had the power to produce stronger evidence. (Evid. Code, § 412.)

These rules do not require a finding for the other side. They let the absence of the evidence count.

If your business is accused of destroying evidence

An accusation is not a finding. Several answers are available, and each depends on a clear timeline.

Routine loss. Absent exceptional circumstances, a court may not sanction a party for failing to provide electronically stored information that was lost, damaged, altered, or overwritten through the routine, good faith operation of an electronic information system. The provision adds that it does not alter any obligation to preserve discoverable information. (Code Civ. Proc., § 2023.030, subd. (f).) A Court of Appeal has held that the protection does not apply to data lost while the party was already under a duty to preserve it. So the date the duty began matters.

No prejudice. If the same emails sit in the recipients' mailboxes, or the file was produced from a backup, the loss may have cost the other side nothing.

Proportion. Sanctions are meant to remedy discovery abuse, not to punish. They should not put the moving party in a better position than it would have held with the evidence. (Williams, supra, 167 Cal.App.4th 1215.) A negligent loss and a deliberate wipe are not treated alike.

Whatever the answer, stop further loss at once, attempt recovery, and tell counsel before the other side finds out on its own.

When a non-party lost the evidence

Sometimes the evidence was held by a storage company, a software vendor, or a former contractor. The Supreme Court acknowledged that the main remedies against a party, the inference and most discovery sanctions, are not available against an independent non-party. It pointed to others. Monetary and contempt sanctions may reach a person who flouts the discovery process by suppressing or destroying evidence. Discovery from a non-party runs through a subpoena. Where the third party had a contractual obligation to preserve the material, contract remedies may be available. And a sufficient connection between the third party and a litigant may bring the party sanctions into play. (Temple Community Hospital, supra, 20 Cal.4th 464.)

What to bring to the first meeting

The complaint or demand letter, with the date the dispute became known.
A description of what was lost, on which device or account, and when.
Any preservation letter or litigation hold that was sent or received.
Retention policies and auto-delete settings for email and messaging.
Names of the people and vendors who handled the device or data.

Frequently asked questions

The other side wiped a laptop after we sued. What can we do about destroyed evidence in California?

Build the record, then ask the court for sanctions in the same case. California treats destruction of evidence during litigation as a misuse of the discovery process, with sanctions that range from fees to issue and evidence orders and, in egregious cases, dismissal or default. A jury may also consider willful suppression under Evidence Code section 413. First establish what the laptop held and whether copies exist.

What is spoliation of evidence?

Spoliation is the destruction or significant alteration of evidence, or the failure to preserve it for another's use in pending or future litigation. In California it is addressed inside the case where the evidence was needed, through discovery sanctions and an inference the trier of fact may draw from willful suppression.

Can you sue for spoliation of evidence in California?

Not as a separate claim in the usual case. The California Supreme Court has held that no tort cause of action lies for intentional spoliation by a party when the destruction was or should have been discovered before the underlying lawsuit ended. It reached the same result for intentional spoliation by a third party. The remedies are sanctions and evidentiary consequences in the original case.

Is it spoliation if the emails were deleted automatically?

It depends on timing. California's discovery statutes bar sanctions, absent exceptional circumstances, for electronic information lost through the routine, good faith operation of an electronic information system. The same provision says it does not change any obligation to preserve discoverable information. Automatic deletion that continues after the duty to preserve has begun is not protected.

A vendor that stored our records lost them and we needed them for a lawsuit. Do we have a claim against the vendor?

Not as a spoliation tort. The California Supreme Court declined to recognize a tort claim against a third party that intentionally destroys evidence, and a Court of Appeal has refused one for negligent loss. Both decisions say contract remedies may be available where the third party agreed to preserve the material. Another Court of Appeal let a claim proceed where the holder expressly promised to preserve the evidence and the claimant relied on the promise. The storage or services agreement is the place to start.

Talk to a California civil litigation attorney

If evidence in your dispute has been destroyed, or your business has been accused of destroying it, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is a business litigation firm in Irvine, California.

This page provides general information about California law and is not legal advice. Outcomes depend on what was lost, when, and why, and on the court.