When the Employer Destroys Evidence
The emails that would have proved your case have been deleted. The personnel file has been “lost.” The surveillance footage was “overwritten.” The employer’s destruction of evidence — whether deliberate or negligent — does not help the employer. Under California law, it may destroy the employer instead.
Evidence is the foundation of every employment case. When the employer destroys it — shreds documents, deletes emails, wipes servers, “loses” files — the foundation is attacked. But the law does not allow the destroyer to benefit from the destruction. Spoliation — the destruction or alteration of evidence that a party has a duty to preserve — carries consequences that can be more damaging to the employer than the evidence itself would have been.
The duty to preserve
An employer has a duty to preserve evidence when it knows or reasonably should know that the evidence is relevant to pending or anticipated litigation. The duty arises when litigation is reasonably foreseeable — which, in the employment context, is often triggered by: the employee’s complaint to HR; the filing of a CRD or EEOC charge; a demand letter from the employee’s attorney; or any communication suggesting the employee may pursue a legal claim.
Once the duty is triggered, the employer must issue a “litigation hold” — an instruction to all relevant personnel to preserve documents, emails, electronic files, and any other evidence that may be relevant to the anticipated litigation. The employer must suspend routine document-destruction policies for the relevant materials and must take affirmative steps to ensure the evidence is not lost.
What happens when evidence is destroyed
When the employer destroys evidence after the duty to preserve has been triggered, several consequences follow.
Adverse inference instruction. The court may instruct the jury that it may infer that the destroyed evidence was unfavorable to the employer. The instruction tells the jury: the employer had evidence. The employer destroyed it. You may conclude that the evidence would have hurt the employer’s case.
The adverse inference is powerful because it fills the gap the destruction created — with an inference that favors the employee. The employer destroyed the emails. The jury may infer the emails contained discriminatory communications. The employer lost the surveillance footage. The jury may infer the footage showed what the employee claimed.
Monetary sanctions. The court may impose monetary sanctions on the employer for destroying evidence — requiring the employer to pay the employee’s costs and attorney’s fees incurred as a result of the spoliation. These sanctions compensate the employee for the litigation expense created by the employer’s misconduct.
Issue sanctions. In extreme cases, the court may impose issue sanctions — deeming certain facts established in the employee’s favor. If the employer destroyed the personnel file, the court may deem it established that the file contained no negative documentation — supporting the employee’s claim that the performance concerns were manufactured.
Terminating sanctions. In the most egregious cases — deliberate, bad-faith destruction of critical evidence — the court may strike the employer’s defenses or enter a default judgment against the employer. These sanctions are rare but available when the destruction is so willful and so prejudicial that no lesser sanction adequately addresses the harm.
Deliberate vs. negligent destruction
The consequences of spoliation depend, in part, on whether the destruction was deliberate or negligent.
Deliberate destruction — shredding documents after receiving a litigation hold, deleting emails with discriminatory content after learning of the lawsuit, instructing IT to wipe a supervisor’s hard drive — is treated most severely. It demonstrates consciousness of guilt — the employer destroyed the evidence because it knew the evidence was damaging. The adverse inference is strongest, and the most severe sanctions are warranted.
Negligent destruction — failing to issue a litigation hold, allowing routine document-destruction policies to continue after litigation was anticipated, losing files through carelessness — is treated less severely but still carries consequences. The employer’s negligence does not excuse the loss, and the employee is still entitled to sanctions that address the prejudice.
What employees can do
An employee who suspects the employer is destroying evidence should:
Send a preservation demand. Through the employee’s attorney, send a written demand to the employer requiring preservation of all evidence relevant to the anticipated claims. The demand specifies the categories of evidence that must be preserved: emails, personnel files, investigation records, surveillance footage, electronic communications, and any other potentially relevant materials. The demand creates a clear record of the employer’s duty to preserve.
File early. The sooner the lawsuit or administrative complaint is filed, the sooner the employer’s preservation obligations become formal. A filed case imposes a duty to preserve that the employer ignores at its peril.
Seek discovery early. In litigation, the employee’s attorney should seek discovery of the employer’s document-retention policies, litigation-hold procedures, and custodial records. If the employer cannot demonstrate that it preserved relevant evidence — or if gaps in the production suggest destruction — the attorney can pursue spoliation sanctions.
Why spoliation matters for the case
Spoliation does not just create sanctions. It creates narrative. A jury that learns the employer destroyed evidence — emails, files, records — after being put on notice of the employee’s claims sees an employer with something to hide. The destruction becomes part of the story: the employer that discriminated, retaliated, and then destroyed the evidence to cover it up.
The evidence the employer destroyed may or may not have been as damaging as the jury imagines. But the jury is permitted to imagine the worst — because the employer, by destroying the evidence, made it impossible to know what it said. The uncertainty falls on the employer, not the employee.
If your employer destroyed evidence — deleted emails, shredded documents, “lost” files — after it knew or should have known that litigation was coming, the destruction carries consequences: adverse inferences, sanctions, and a narrative that tells the jury the employer had something to hide. The employer chose to destroy the evidence. The law does not let it benefit from that choice.
This article is general information about California law and is not legal advice. Every situation turns on its particular facts.