Spoliation is what happens when the duty to preserve is not honored. It does not require a shredder. In a modern system it usually looks like nothing at all: a retention policy running on schedule, a mailbox deprovisioned during an employee change, a log aging past its window.
The two tiers under Rule 37(e)
If ESI that should have been preserved is lost and cannot be restored, a court may order measures no greater than necessary to cure the prejudice. If the court finds the party acted with intent to deprive another party of the information, it may presume the information was unfavorable, instruct the jury to do so, or dismiss.
Why timing evidence matters more than accusation
Proving intent is hard. Proving that a record was available on one date, demanded on a second, and unavailable on a third is not. That chronology is what preservation letters and transport metadata build.
The documented example
A Lake County prosecutor’s mailbox generated an authenticated auto-reply on June 23, 2026, returned RecipientNotFound on July 14, and returned Access denied on July 29 — during active litigation with preservation demands served. See the transport record.