Spoliation

Suppose you discover that the company's regular program of recycling backup tapes after three years was not discontinued as it should have been in response to the preservation order. When the order was issued, the general counsel sent out email and voicemail to all relevant department heads saying that all backups should be preserved until further notice, but, in one department, the backups did not get preserved until four months later. When deposed, the relevant IT person said he missed the message. As a result, four months of backup tapes have been destroyed.

1. What is the spectrum of potential judicial responses to such behavior?

2. What would you ask for?

3. Is it worth asking for anything without proof of willfulness and without proof of what was destroyed?