Cheating in the 21st Century
The Journal of the Section of Litigation - ABA
7.1.2001
Anyone who has felt the heat of trial has wondered whether an opponent or a witness was lying, whether
documents had been concealed or destroyed, or whether “cheating” in some other form was influencing the
process. A trial day sometimes raises as many new questions as it resolves: How come Witness A suddenly cannot
remember? If Witness B just testified that she took notes at the meeting, why were they never produced to us?
Often, the day-to-day demands of trial leave parties to ponder these issues without any satisfactory resolution.
Some commentators naively hold fast to the belief that cross-examination, liberal discovery, respect for the rule of
law, and the adversarial system as a whole ensure that “cheaters never win [except occasionally].” See, e.g.,
Charles W. Wolfram, Modern Legal Ethics § 12.5.1 (1986). But these are feel-good overstatements. The
regrettable reality, as many judges and experienced litigators can attest, is that cheating routinely affects the legal
process, and cheaters usually do not get caught.
You might even say cheating is a time-honored tradition. For as long as there have been legal proceedings,
litigants have cheated. No matter what society, no matter what era, no matter what religious, moral, or political
climate, people cheat to win in legal proceedings just as they do elsewhere. One scholar, John T. Noonan, has
traced the history of witness bribery back to Egyptian and Roman tribunals.
Cheating endures in litigation for one simple reason: It works. One sentence in a memo or even a cryptic
handwritten note can make or break the largest case. If that memo or note suddenly disappears, so might your
client’s chances for success. The same is true of nuances of witness testimony. In as many cases as not, a single
well-placed fib, exaggeration, memory lapse, or trip to the shredder can accomplish as much as a team of highpriced lawyers.
Bribery and perjury historically have been among the cheater’s primary tools. Bribery, for example, was a favorite
device in ancient Rome. But by most accounts, it is not rampant today. The English Star Chamber courts obsessed
about eradicating and punishing perjury. Yet, although the Clinton-Lewinsky episode brought the issue of perjured
testimony into America’s livingrooms, and though it sent a mixed message about the consequences of cheating,
there is no strong basis for believing that perjury is a bigger problem now than in the past.
Unlike these examples, the consensus now is that occurrences of spoliation—evidence destruction—are on the
rise, and empirical evidence supports this. One study revealed that 50 percent of polled litigators found spoliation
to either be a “frequent” or “regular” problem. David Bell et al., “Let’s Level the Playing Field,” 29 Ariz. St. L.J. 769,
771 (1997). Another study surveying antitrust lawyers found that nearly 70 percent frequently encountered
unethical practices, the most common being the destruction of evidence. Charles R. Nesson, “Incentives to
Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action,” 13 Cardoza L. Rev. 793, 793 (1991).
“Since the mid-1980s spoliation of evidence has moved from relative obscurity to prominence as a legal issue.”
Scott Katz & Anne Marie Muscaro, “Spoliage of Evidence, Crimes, Sanctions, Inferences, and Torts,” 29 Tort & Ins.
L.J. 51 (1993).
Courts, legislatures, and rules committees across the country are now mulling over the cheating problem in
general, and spoliation in particular. As a consequence, the rules governing when potential evidence may be
destroyed, what sanctions are appropriate, and even whether tort causes of action should be recognized to
combat the problem all are in a state of evolution. See, e.g., Henderson v. Tyrell, 910 P.2d 522, 531 (Wash. Ct.
App. 1996) (noting that courts are giving problem “increased attention”); John W. Strong, McCormick on Evidence
§ 265 (“This area of the law appears to be in the process of rather rapid change, although the patterns of the new
order are not yet entirely clear.”).
The timing of the increased attention to spoliation is perfect. High-tech advances that now dominate our lives—
word processors, laptops, networks, e-mail, the Internet, digital scanners, and voice mail—present new means for
cheating, and the sheer volume of data now collected and stored affords increased opportunities. Estimates are
that 6.6 trillion e-mail messages will have passed through computer networks in the United States between 1997
and the beginning of 2000. S.C. Guynne and John F. Dickerson, “Lost in the E-Mail,” Time, Apr. 21, 1997, at 88.
That’s a lot of potential evidence.
Why are we now so worried about spoliation? Again, it may be a function of the age in which we live. Think back
10 or 20 years. Discovery focused on finding the “smoking gun” interoffice memo. You could expect to obtain all
correspondence between the parties. And when you asked for a party’s “files,” you usually got back a stack of
copies, the top one being a copy of the outside of the manila folder.
Fast forward to today. Parties often correspond by voice mail, e-mail, cellular phones, or faxes sent from a
computer. A corporation’s “files” now tend to be located in cyberspace rather than the basement. There are no
smoking-gun memos, only e-mails that are usually “deleted” minutes after they are created.
At first blush, the technological world appears to be a cheater’s paradise: Hit a button, and unfavorable evidence is
deleted. Gone forever—or so it seems. Even better, a cheater can very reasonably explain that his or her normal
practice is to delete an e-mail and voice mail after receiving them, and to “write over” word processing
documents. Once in litigation and faced with a discovery request, the cheater then can say, “I have produced
everything I have.”
But does “deleted” really mean “destroyed”? As a result of the new technology, a tremendous dispute is brewing
over this question. Unlike paper run through a shredder, electronic documents and voice mail usually are not gone
the moment they are deleted. Thus, some experts argue that electronically generated documents are more
permanent than their paper counterparts. Betty Ann Olmstead, “Electronic Media: Management and Litigation
Issues, When ‘Delete’ Doesn’t Mean Delete,” 63 Def. Counsel J. 523, 525 (Oct. 1996). Indeed, there have been
recent high-profile cases in which people thought they had “deleted” evidence and then found out the hard way
that they had not. Oliver North, for example, deleted unfavorable e-mail but got caught because he did not realize
that his system had a 90-day backup.
Mining for Gold
From both a technical and practical perspective, however, “deleted” usually means “unavailable,” even if
“destroyed” is not altogether accurate. North was caught only because highly trained government investigators
swooped into his office within the 90-day window in which “deleted” messages were retrievable from his office
computer. On other computer systems, deleted documents are destroyed almost immediately or within time
periods that expire long before litigation commences. (Hot new software called Wipe and TruErase! now can
ensure that sensitive e-mails do not end up on an opponent’s exhibit list.) On still other systems, critical
information survives, but only on backup tapes that are routinely destroyed, overwritten, or difficult to search.
Although bits of information often can be found within networks, hard drives, fax buffers, printers, and backup
tapes, it is often sketchy and can only sometimes be retrieved with expensive expert assistance and extreme
effort. There may be “gold” in deleted documents, but finding gold is never easy.
Nevertheless, parties routinely respond that they have produced all relevant documents, including e-mail, when in
reality many additional documents exist and could be retrieved. Moreover, many documents “deleted” before
litigation by various systems and corporate practices may be truly “destroyed” after litigation begins. Thus, unless
a party receives a complaint and immediately takes action to preserve already deleted documents or e-mails,
evidence could be destroyed during litigation without a party’s deliberately doing anything. A party therefore can
cheat without even meaning to do so. Judicial reaction varies in cases where a party unintentionally destroyed
evidence. Compare Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885-86 (9th Cir. 1991) (discovery sanctions
not warranted when alleged spoliation was accidental and not intentional) with Marrocco v. Gen. Motors Corp.,
966 F.2d 220, 224 (7th Cir. 1992) (discovery sanctions appropriate if party does not take reasonable steps to
preserve evidence, even if conduct was not intentional).
Obviously, in the electronic age, the situations in which spoliation (or inadvertent destruction) issues arise are
virtually endless. Consider the following scenarios:
You represent the CEO of a client in a sexual harassment suit. Six months into the litigation, he confesses that he
sent “sort of” sexually explicit e-mails to the plaintiff, his former secretary. He also confesses that before the
lawsuit was filed, he obtained her password, accessed her computer, and deleted the e-mails.
Has the CEO spoiled evidence? He certainly attempted to do so. He electronically “shredded” the electronic
document. He potentially could be liable for all kinds of sanctions. But knowledge of computers, networks, and
your client’s e-mail system may save him from the serious consequences of attempting to destroy evidence.
In the days of paper, you would look in filing cabinets to find copies of the destroyed documents. Apply the same
method here. Work with a computer consultant to track down electronic copies of the e-mails in question. If they
are found and can be produced, your opponent has not been prejudiced, and your client may avoid the most
severe discovery sanctions, such as having judgment entered against him. See Chambers v. Nasco, Inc., 501 U.S.
32, 43-45 (1991).
The CEO’s unsuccessful attempt to destroy the e-mails, however, still may lead to an instruction to the jury that
they are permitted to draw an adverse inference from the CEO’s wrongdoing. Your client therefore needs to
understand that although your thoroughness may have saved him from serious punishment by the judge, his
actions still are subject to a jury’s rebuke.
Change the facts slightly. Suppose the e-mails in question were deleted pursuant to the regular practice of your
client before litigation was anticipated. A week after the lawsuit was filed and served, backup tapes containing
electronic copies of the e-mails were erased pursuant to regular policy and without any conscious thought about
litigation. Has your client spoiled evidence? Maybe. Some courts have held that spoliation of evidence can occur
even if the destruction is not intentional. These courts apply a “fault” standard and find spoliation if the party does
not take reasonable steps to preserve evidence. See, e.g., Marrocco, 966 F.2d at 224. Other courts inquire
whether the policy of destroying backup tapes is designed to ensure the routine destruction of potentially relevant
evidence. See Reingold v. Wet ‘n Wild Nev., Inc., 944 P.2d 800, 802 (Nev. 1997). If so, merely labeling the
destruction part of the “policy” will not prevent a finding of spoliation. Id. See also Bill Miller, “U.S. Held Liable for
Lost Indian Papers,” Wash. Post, Dec. 7, 1999, at A8, (reporting special master’s finding that Treasury
Department, pursuant to “routine policy,” had shredded relevant documents and master’s conclusion that doing so
was “part of a general pattern of obfuscation”).
Consider another situation. You send a request for production of documents to opposing counsel early in the case,
seeking all drafts of reports prepared by the opponent’s experts. Later, your opponent produces the expert’s
reports, but no drafts. You depose the expert and find that he prepared his report on word processing software.
As he revised the report, the expert “wrote over” the existing electronic document; thus, no “drafts” were ever
preserved.
Has the expert spoiled evidence? The answer depends on when a “draft” document is, in fact, a draft. If the
expert pushed the print button and printed out a report, then a “draft” was prepared and should have been
produced. But should there be a difference in the analysis because the expert simply kept the draft within the
computer? There is no logical reason to make such a distinction, but proving the existence of an electronic draft is
problematic.
The same writeover problem exists with Web sites. More and more, these sites are sources of relevant
information, yet companies constantly update them. Does a company have a duty to preserve prior versions of its
Web sites? The answer to that question is yes if the company has reason to anticipate litigation and relevant
information might be contained in its Web pages. Harkins Amusement Enters., Inc. v. Gen. Cinema Corp., 132,
F.R.D. 523, 524 (D. Ariz. 1990)
Here is another one: You ask your client for categories of documents, and it delivers to you boxes and boxes of
documents, including printouts of e-mail. Certain of the e-mail printouts obviously are replies to earlier e-mail
messages, yet your client has not delivered these original messages. What duty do you have to track them down?
What consequences will you (or your client) face if you do not promptly do so and they are permanently lost as a
result? The answers are unclear. But at the very least, you may find your clients using up credibility chips at trial
trying to explain why certain potentially critical evidence is not around.
The possible scenarios are infinite. But the guiding principles remain the same for determining whether spoliation
occurred: Did the party intentionally destroy evidence or fail to take reasonable steps to preserve relevant
evidence? Was the destroyed information relevant to the litigation? Was the opposing party prejudiced? Given the
law’s relevant inexperience with “electronic” evidence, applying these principles is not always easy.
Assuming, however, that what you really want is evidence and not a fight about spoliation, there are things that
can and should be done to minimize and protect your client from cheating. Here are some suggestions.
 Educate yourself and your clients on both the basic technology and the evolving law in this area.
Can you explain to your client how to search for e-mail that may have been deleted? Do you know the process and
timetable by which your client’s e-mails are destroyed? Can you recommend a consultant to help educate your
client about these issues? Corporate counsel who do not understand the functioning of their company’s e-mail,
voice mail, and word processing systems can look forward to testifying about how the company did not know it
could have preserved the destroyed evidence. If spoliation is going to be an issue, your client had best be
equipped to address it before the adversary does.
Also, clients need to be warned that destroying electronic documents before trial pursuant to a routine document
destruction policy can be deemed spoliation if the policy was put into place to deprive potential claimants of
helpful evidence. See Reingold, 944 P.2d at 802. See also Steven W. Huang & Robert H. Muriel, “Spoliation of
Evidence: Defining the Ethical Boundaries of Destroying Evidence,” 22 Am. J. of Trial Adv. 191 (1998). Given that
backup tapes are not usually very expensive, does your client have a good reason for destroying stored e-mail on
a routine basis?
 Don’t wait to act until your discovery notices go out. Early on—perhaps even before litigation begins—
send “preservation” notices to potential discovery sources, requesting that they take steps to preserve e-mail,
voice mail, documents stored within computer hard drives, and the hard drives themselves. The notice should spell
out, in detail, that your request contemplates they will also take steps to “retrieve” such information before it is
destroyed. Specify also that, if the party does not know how to do this, it should say so immediately.
 Take a fresh look at how you define “documents” in your standard discovery instructions. If your
instructions contain a rambling, unhelpful, antiquated block paragraph that uses terms you do not understand,
such as “aural communications” or “any other type of data compilation whatsoever,” rework it. People do not feel
compelled to respond to boilerplate. Clearly explain that “deleted” e-mail and documents are not necessarily
irretrievable and that you therefore request the responding party search for evidence on hard drives, networks,
backup tapes, or whatever else appropriate. You might also consider accompanying the request with an
interrogatory that specifically asks what the party has done to ensure that all relevant documents and e-mail have
been produced. In a federal court proceeding, remind your opponent of Rule 34’s definition of documents that
includes “other data compilations from which information can be obtained, translated, if necessary, by the
respondent through detection devices into reasonably usable form.” Fed. R. Civ. P. 34. By taking these steps, the
other side will get the picture that it had better educate itself.
 Help your adversary. Given the explosion in the use of computers, e-mails, and various software, it may be
burdensome to ask your adversary to produce “all” relevant electronic data. Your opponent may honestly have no
idea about the various ways to access seemingly deleted electronic evidence. Consider offering to have your
computer consultant assist your opponent in searching for electronic evidence. Undoubtedly, your adversary will
object to having someone you have hired “hacking” around in her client’s computer system. But your consultant
can provide unobjectionable methodologies for the other side to use in searching networks and databases. Followup depositions or interrogatories can confirm whether those methodologies were followed.
 Probe your adversary about how adequately it searched its electronic files. In the old days, we would
ask witnesses to tell us which paper files were searched and produced. Now, we must ask about electronic files as
well. Make sure your depositions and paper discovery exhaust the witnesses’ knowledge of where, when, and how
they searched for documents, both paper and electronic.
 If you suspect foul play, get help. There is a cottage industry of “electronic data recovery specialists.” Find
a good one. Lay the foundation for the existence of the electronic data, and its deletion, in interrogatories and
depositions. Consider whether your specialist can find a way to retrieve the “deleted” information. Are there
backup tapes? Is there a network server in which a copy of the document may reside? Is the hard drive available
for examination? Are there computers other than the network server onto which an e-mail or document was
saved? What information is available from your opponent’s fax machine?
In light of the prevalence of computer technology in our homes and workplaces, as well as the perception that
hitting the delete button is not as culpable an act as shoving paper into a shredder, spoliation of electronic
evidence will likely become an even bigger threat. With education and time, many of these issues will be sorted
out. In the meantime, much evidence will be lost, many litigation sideshows will occur, and a few “examples” will
be set by judges so that the word gets out.
Making Progress
The legal community’s response to these issues must be vigorous and well publicized. Lawyers need to learn how
to chase electronic evidence and spot or even prevent cheating. Indeed, the very technology that enables cheating
may make it easier to catch cheaters. Unlike paper files, electronic files even when deleted often leave “electronic
fingerprints” that could reveal when the files were deleted. That fact alone often is significant in the spoliation
issue because it could help pinpoint what knowledge a party had at the time he deleted a document. See Harkins
Amusement Enterprises, 132 F.R.D. at 524 (a litigant is under duty to preserve evidence when it knows, or should
know, that evidence is relevant to litigation).
Also, many jurisdictions now have mandatory disclosure rules requiring parties to exchange important facts and
documents near the beginning of the case. Part of those rules should be a requirement that, where appropriate,
the parties disclose details about how information is stored in their respective computer systems and whether it is
routinely deleted. This would force parties to deal with the issue early on—perhaps before the “destroyed-in-theordinary-course” excuse takes root—and would make clear that parties have a duty to preserve electronic
evidence. Similarly, a specific statement to the civil procedure rules requiring reasonable measures to preserve
relevant evidence, including electronic evidence, would help.
Courts also must grant litigants greater access to an adversary’s computer system. Fishing expeditions and
harassment must be discouraged, but, in certain cases and with appropriate safeguards, parties must be given
access to determine whether evidence exists. A party should have to show only a reasonable probability that
relevant electronic evidence exists and has not been or will not be produced. This should not be turned into a
major foundational hurdle.
But the single most important change that must occur is for the judiciary to set clear standards requiring that
relevant evidence be preserved and to punish cheaters when it is not. Courts must be willing to hear and grant
particularized requests to take unconventional discovery relating to computerized evidence. They must explore
creative ways of allowing increased discovery of electronic evidence while discouraging fishing expeditions. And
they must not be shy about calling a cheater a cheater.
Thanks chiefly to Hollywood and high-ranking government officials, the cheating problem, arguably not
acknowledged enough in the past, can no longer be overlooked. President Clinton and Oliver North both got
caught, as did the bad guys in The Verdict and Class Action. Cheating probably saved the corporate defendant
millions in A Civil Action, and it made life hell for John Travolta’s movie character. Most of us in the real world
recognize, however, not only that the risks outweigh the potential rewards but also that cheating undermines
many of the values that moved us to become lawyers in the first place.