Reply #16: Rules on spoliation vary from state to state

[Land Shark]

A case can not be based entirely on the spoliatory inference, but it's rare that there would be an absence of any other evidence. Most likely some version of the code that may or may not have all of it would be produced under court order, and the debate would be about whether something was NOT produced that the spoliatory inference can attach to. A plaintiff would then need to prove by a preponderance of the evidence that something existed that was destroyed or withheld by the other party, under circumstances when such evidence should not have been destroyed (such as rules requiring the retention of evidence or votes).