A lab technician was injured when her lab coat caught on fire. Her employer misplaced the coat that he had agreed to preserve for a products liability action against the coat's manufacturer. The technician sued her employer. A New York court held that this was not spoliation of evidence. Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774 (App. Div. 1993).
An insurance company promises to preserve a car for a plaintiff's products liability claim against the manufacturer. This insurance company wrecked the car and sold it to a salvage yard where it was disassembled and destroyed. The Third District Court of Appeals held that the plaintiff could state a claim for negligent spoliation of evidence because the oral agreement between the insurance company and the plaintiff created a duty on the part of the insurance company to preserve the evidence. Miller v. Allstate Insurance Co., 573 So. 2d 24 (Fla. 3d DCA 1990).
At a dismissal hearing, a prosecutor told the court and plaintiff's attorney that he would preserve an arrest tape that vindicated the plaintiff. Plaintiff, who owned a massage parlor, was the subject of an undercover sting operation by the police vice squad. Plaintiff was arrested, but charges were dismissed because on the arrest tape recorded by the officers, plaintiff emphatically denies that sex was available at the massage parlor. Two years later, before the statute of limitation expired, plaintiff filed a civil action against the police officers and the municipality. However, the tape that the prosecutor agreed to preserve, sounded less clear and appeared to be altered. The Supreme Court of Alaska held that plaintiff did not have to rely on an implied cause of action, that she could have sued directly for the independent tort of intentional spoliation of evidence. Hazen v. Municipality of Anchorage, 718 P. 2d 456 (1986).
In the aforementioned scenarios, arguably all represent the destruction of evidence. However, not all of these scenarios would represent the spoliation of evidence if these same factual circumstances were to occur in varying jurisdictions. Depending on the jurisdiction, these examples of destruction of evidence may or may not be actionable for the tort of spoliation of evidence. Factors that must be considered are: whether the spoliation was negligent or intentional, whether the spoliator was a party to the civil action or a third party, whether there was a duty to preserve the evidence, and whether the jurisdiction has adopted an independent tort for the spoliation of evidence.
While it is agreed that the common goal in rectifying the problem of spoliation of evidence is to preserve the integrity and fairness of the judicial system, not all states are in agreement as to the means to achieve this end. There are strong arguments on both sides, in favor of recognizing an independent tort and against adopting an independent tort. The core of these arguments in favor of or against adopting an independent tort for spoliation hinges on the adequacy and effectiveness of the remedial measures.
II. TRENDS IN VARIOUS JURISDICTIONS
The majority of states have chosen not to adopt any independent tort for the spoliation of evidence. A couple of states have adopted either the tort for the negligent spoliation or the tort for the intentional spoliation of evidence. A handful of states recognize both intentional and negligent spoliation of evidence as actionable torts.
The most significant trend and surprising development is evident in the recent California Supreme Court case, Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 954 P.2d 511, 74 Cal.Rptr .2d 248 (1998). In this case, the California Supreme Court held that it would not recognize an independent tort for the intentional spoliation of evidence against a party to the underlying civil litigation, when the party knew or should have known about the spoliated evidence prior to the conclusion of trial. This case overruled Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr 829 (1984), the first case ever to recognize an independent tort. Tort Reform: A Call For Florida To Scale Back Its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, Stefan Rubin, (1999). The Court in Cedars-Sinai, supra stated that Smith, supra erroneously allowed an intentional tort claim against a party to an underlying civil action, even though the spoliation was discovered before trial.
The emergence and pervasiveness of e-mail also presents challenging issues for the spoliation of evidence and the feasibility of corporate America's ability to preserve and produce relevant e-mail in discovery. A duty to preserve e-mail, that may be relevant for litigation, extends to both small and large corporations. In United States v. ACB Sales & Services, 95 F.R.D. 316, 318 (1982) as cited in E-mail Discovery: The Duties, Danger and Expenses, 46-JAN Fed. Law. 42, Timothy Q. Delaney (1999), the court held that "a business which generates millions of files cannot frustrate discovery by creating an inadequate filing system." In situations like this, the failure to take measures to safeguard information can equate to the spoliation of evidence.
Courts will impose severe sanctions, such as dismissal and default if the following criteria is met: 1) bad faith or willful abuse of the judicial process; 2) serious prejudice to the opposing party; 3) absence of alternative sanctions to punish adequately the guilty party and deter future violations. Computer Assocs, Int'l v. American Founder, 133 F.R.D. 166, (1990).
Furthermore, courts have not been sympathetic and have rejected arguments that litigants would be faced with undue expense and burden when faced with requests for relevant e-mail. In Baxter Travenol Lab. Inc. v. LeMay, 93 F.R.D. 379 (1981), the court rejected plaintiff's argument that production of the relevant evidence would require searching over 2.8 million e-mail documents and cost more than $80,000, was unduly burdensome. The court stated that "the burden was a product of the plaintiff's own unwieldy record-keeping system." Baxter, supra 384.
III. JURISDICTIONS THAT HAVE ADOPTED THE NEGLIGENT SPOLIATION TORT
- DISTRICT OF COLUMBIA
- NEW JERSEY
III. JURISDICTIONS THAT HAVE ADOPTED THE NEGLIGENT SPOLIATION TORT
DISTRICT OF COLUMBIA
The District of Columbia recognizes the negligent or reckless spoliation of evidence as an independent and actionable tort if the requisite elements for the tort are met and the plaintiff can establish that the defendant's actions proximately caused the harm. Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (1998).
The Court of Appeals in Holmes, supra established the requisite test. To prevail under an independent tort for negligent or reckless spoliation of evidence, the following elements must be met:
- a plaintiff must show by a preponderance of the evidence that the defendant breached a legally cognizable duty to the plaintiff
- the underlying claim was significantly impaired due to the spoliation of evidence
- the defendant's actions proximately caused the harm to plaintiff
- the plaintiff's ability to prevail in the underlying lawsuit was significantly impaired due to the absence of spoliated evidence
- there was a significant possibility of success in the underlying claim against the third party. Id.
The tort of negligent spoliation of evidence is recognized in New Jersey, but it does not recognize the tort for intentional spoliation of evidence. In Callahan v. Stanley Works, 306 N.J. Super. 488, 703 A.2d 1014 (1997), the Superior Court held that an injured employee may bring a claim for negligent spoliation of evidence against an employer who negligently destroys the evidence necessary to pursue a third party negligence action. The court stated that the employer's failure to preserve the evidence hindered the employee's negligence claim. Although there is no duty to preserve evidence, absent an agreement, contract, statute or special circumstance, the court reasoned that the "scope of duty to preserve evidence established by tort of negligent spoliation of evidence is not boundless, and potential spoliator need only do what is reasonable under the circumstances." Callahan, supra 496, quoting Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995).
Although New Jersey recognizes the tort for negligent spoliation of evidence, it does not recognize the tort for intentional spoliation of evidence. In Baxt v. A.Liloia, 155 N.J. 190, 714 A.2d 271 (1998), the New Jersey Supreme Court stated that there is "little difference between liability for spoliation of evidence and [the intentional destruction of evidence]." Id. In this case, the Court rejected plaintiff's argument that the defendants' (attorneys) abuse of discovery rose to the level of tortious concealment and the spoliation of evidence. The attorneys had concealed the source of a modification agreement attached to a motion for summary judgment. The plaintiff alleged tortious concealment. In rejecting plaintiff's claim, the Court held that the plaintiff could not establish the requisite elements to maintain an independent cause of action based on spoliation, because the breach of the Rules of Professional Conduct do not per se give rise to tortious claims. The Court reasoned that the purpose of these rules is to regulate attorney conduct, not to serve as a source of litigation. Baxt, supra 196.
To prevail on a claim for intentional destruction of evidence, the plaintiff would have to prove that:
- there was a legal obligation of the defendant's part
- the information was material to plaintiff's case
- the plaintiff could not have readily obtained the information without disclosure by the defendants
- there was intentional nondisclosure
- the plaintiff was harmed by relying on this nondisclosure. Baxt, supra 206.
IV. JURISDICTIONS THAT RECOGNIZE THE TORT FOR INTENTIONAL SPOLIATION OF EVIDENCE
- NEW MEXICO
IV. JURISDICTIONS THAT RECOGNIZE THE INTENTIONAL SPOLIATION TORT
In Hazen v. Municipality of Anchorage, 718 P. 2d 456 (1986), the Supreme Court of Alaska held that the plaintiff did not have to rely on an implied cause of action, that she could have sued directly for the independent tort of intentional spoliation of evidence. The Court stated that Alaska recognized the tort of intentional interference with prospective civil litigation by spoliation of evidence.
In this case, the plaintiff was the owner of massage parlor and brought a claim as a result of alleged alteration of an arrest tape. Plaintiff was the subject of an undercover sting operation by the police vice squad and arrested, but charges were dismissed, because on the arrest tape recorded by the officers, plaintiff emphatically denies that sex was available at the massage parlor. At a dismissal hearing, a prosecutor told the court and plaintiff's attorney that he would preserve an arrest tape that vindicated the plaintiff. Two years later, before the statute of limitation expired, plaintiff filed a civil action against the police officers and the municipality. However, the tape that the prosecutor agreed to preserve sounded less clear and appeared to be altered.
In Levinson v. Citizens National Bank, 644 N.E.2d 1264 (1994), the Court of Appeals held that "the claim of negligent or intentional interference with a person's prospective or actual civil litigation by spoliation of evidence is not and ought not be recognized in Indiana." Id. Indiana recognizes the tort of intentional interference with civil litigation only with respect to the spoliation or destruction of evidence and under very specific circumstances. In this case, trustee beneficiaries brought action against trustee bank. The court stated that there is no common law duty on the part of an employer to preserve potential evidence in a possible third party action for an employee.
The Supreme Court of New Mexico has declined to recognize the negligent spoliation of evidence as a separate tort. In Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995), the Court held that an injured worker, who brought action for damages against a former employer for intentional and negligent spoliation of evidence, could only recover for the tort of intentional spoliation of evidence. The Court defined the intentional spoliation of evidence as the "intentional destruction, mutilation, or significant alteration of potential evidence for purpose of defeating another's recovery in civil action." Coleman, supra 648. The Court declined to recognize the tort for negligent spoliation of evidence, stating that "imposition of duty on owner to preserve his personal property for use of another individual in potential lawsuit is unreasonable in the absence of special circumstances." Coleman, supra 649.
V. JURISDICTIONS THAT HAVE ADOPTED BOTH THE NEGLIGENT AND THE INTENTIONAL SPOLIATION TORT
V. JURISDICTIONS THAT HAVE ADOPTED BOTH THE NEGLIGENT AND THE INTENTIONAL SPOLIATION TORT
In Williams v. State of California, 169 Cal.3d 18, 27-28, 192 Cal.Rptr 233, 664 P.2d 137 (1983), the California Supreme Court stated that it would recognize a cause of action for negligent spoliation of evidence under appropriate circumstances. In this case, the court held that the plaintiff could not state a cause of action for the negligent spoliation of evidence because she had not established a duty to preserve the evidence. The plaintiff was injured when a piece of heated brake drum from a passing truck was propelled through plaintiff's windshield, striking her in the face. The highway patrolman, who assumed the responsibility of investigating the accident, negligently and carelessly destroyed the evidence and any opportunity plaintiff had to recover damages. The court stated that the alleged negligence was a nonfeasance.
Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr 829 (1984) was the first court to adopt an independent tort for the intentional spoliation of evidence. Tort Reform: A Call For Florida To Scale Back Its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, Stefan Rubin, (1999). Relying on Williams, supra, the Court of Appeals, Division three, held that a cause of action may be stated for the intentional spoliation of evidence if there are allegations that a defendant intentionally lost or destroyed physical evidence that it had promised to preserve, and the loss of this evidence significantly prejudices the plaintiff's opportunity to recover damages for injuries sustained.
However, recently in Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 954 P.2d 511, 74 Cal.Rptr .2d 248 (1998), the California Supreme Court overruled Smith, supra and held that it will not recognize an independent tort for the intentional spoliation of evidence against a party to the underlying civil litigation when the party knew or should have know about the spoliated evidence prior to the conclusion of trial.
Furthermore, the court stated that, while the destruction of evidence may destroy the integrity of the judicial system, there is no need for an independent tort for the spoliation of evidence, because there are nontort remedies. These remedies include: jury instructions, discovery sanctions, and sanctions by the bar association and California penal code which address the issue of destruction of evidence. The court reasoned that recognizing an independent spoliation tort would not be in the best interests of judicial economy. The increased litigation costs, and the possible violation of doctrines of collateral estoppels and res judicata outweigh the benefits of recognizing an independent tort for spoliation. Id.
Most recently in Mardeusz v. Petaluma Police Dept., Docket No. 97-16755, D.C. No. CV-97-02470-SI, United States Court of Appeals, Ninth Circuit (August 17, 1999, Browning, Schroeder, Pregerson), the United States District Court for the Northern District of California held that no tort remedy exists under California law for the spoliation of evidence when the victim knows of the spoliation before decision on the merits in the underlying action. Plaintiff had alleged that the defendants, the police department, conspired to cover up evidence of alleged abuse of Plaintiff by her father, because the evidence would be damaging and embarrassing to the defendants. The plaintiff alleged negligent and intentional spoliation of evidence. However, the district court dismissed plaintiff's claims because there was no supporting facts of the alleged conspiracy. The Court of Appeals affirmed this decision.
Florida was the first state to adopt the tort for negligent spoliation. Recently there have been efforts made to scale back its adoption of this independent tort. Tort Reform: A Call For Florida To Scale Back Its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, Stefan Rubin, (1999).
Today, the Third and Fourth District Courts of Appeals have adopted the negligent or reckless spoliation of evidence as an independent and actionable tort. However, the Florida Supreme Court has declined to address this issue.
In Bondu v. Gurvich, 473 So.2d 1307 (1984), the Third District Court of Appeals held that the plaintiff could prevail on a claim for negligent spoliation of evidence because the defendant owed a duty to her and was negligent. The court stated that the hospital was negligent because it had a duty to preserve and maintain medical records of its patients. The plaintiff needed these records for her medical malpractice suit against the anesthesiologist and the hospital for the death of her husband. The court reasoned that the defendant's actions of destroying the requisite medical records represented the negligent failure to preserve evidence for civil litigation by spoliation of evidence. Bondu, supra.
In Miller v. Allstate Insurance Co., 573 So. 2d 24 (Fla. 3d DCA 1990), the Third District Court of Appeals held that the plaintiff could state a claim for negligent spoliation of evidence because of the oral agreement between the insurance company and the plaintiff created a duty on the part of the insurance company to preserve the evidence. The insurance company had promised to preserve a car for a plaintiff's products liability claim against the manufacturer. This insurance company wrecked the car and sold it to a salvage yard where it was disassembled and destroyed.
In St. Mary's Hospital Inc. v. Brinson, 685 So.2d 33 (1996), the Fourth District Court of Appeals held that the trial court did not abuse its discretion in consolidating the plaintiff's claims for spoliation of evidence and negligence, because this would not deprive the defendant of any substantive right. In this case, the plaintiff brought actions against a hospital because of the death of their child from the administration of anesthesia and the hospital's subsequent destruction of the vaporizer used in the anesthesia machine. In citing Bondu, supra and Miller, supra, the court held it expressly recognizes the tort of spoliation of evidence.
Minnesota will recognize both torts in limited circumstances. In Baugher v. Gates Rubber Company, 863 S.W.2d 905 (1993), the Missouri Court of Appeals held that it would not recognize a claim for intentional spoliation in the absence of evidence that insurer intentionally destroyed evidence and would not recognize a negligent spoliation claim if one or more of the common law negligence elements were missing.
Ohio is the only state Supreme Court that has held that the tort for intentional or negligent spoliation of evidence may be brought at the same time as the primary action for tortious interference with prospective litigation. In Smith v. Howard Johnson Company, Inc., 67 Ohio St.3rd 28, 615 N.E.2d 1037 (1993), the court held that it would allow a spoliation claim to be brought prior to or simultaneously with resolution of the underlying claim, if the following elements are met:
- pending or probable litigation involving plaintiff
- knowledge on part of the defendant that litigation exists or is probable
- willful destruction of evidence by defendant designed to disrupt plaintiff's case
- disruption of plaintiff's case
- damages proximately caused by the defendant's acts. Id.
VI. JURISDICTIONS THAT HAVE NOT ADOPTED AN INDEPENDENT SPOLIATION TORT
- NEW HAMPSHIRE
- NEW YORK
- NORTH CAROLINA
- NORTH DAKOTA
- RHODE ISLAND
- SOUTH CAROLINA
- SOUTH DAKOTA
- WEST VIRGINIA
VI. JURISDICTIONS THAT HAVE NOT ADOPTED AN INDEPENDENT SPOLIATION TORT
Many jurisdictions have chosen not to adopt an independent tort for spoliation of evidence because other remedies often exist.
In re Ex Parte Gen. Motors Corp., No. 1971318, 1971343, 1999 WL 754213 (Ala. Sept. 24, 1999), the Supreme Court of Alabama held that the doctrine of spoliation of evidence did not warrant the granting of summary judgment in favor of the defendants, in the absence of evidence that the plaintiff had willfully allowed the evidence to be destroyed after the defendants had requested access to it. In this case, the plaintiff sued the defendants for physical injuries and damages sustained to his automobile as a result of breach of implied warranty of merchantability claim and the implied warranty of fitness for a particular purpose. The plaintiff stopped making payments on this car and allowed the car to be repossessed, which precluded the defendants' examination of the car.
The Court held that, "¡ Kunder these facts, we cannot concluded that the doctrine of spoliation requires that the summary judgment be affirmed. Therefore, we affirm the Court of Civil Appeals' reversal of summary judgment entered in favor of [defendants] on plaintiff's breach-of-implied-warranty-of merchantability claim." Gen. Motors Corp, supra 10. The Court rejected the defense argument that such an examination was crucial to their defense and in citing, Iverson v. Xpert Tune, Inc., 553 So.2d 82 (1989) stated that, "¡ this Court noted that dismissal is the most severe sanction that a court can apply; nevertheless, it concluded that a dismissal was warranted [in Iverson, supra] because the plaintiff had willfully allowed the fuel pump to be discarded or destroyed after Xpert Tune had moved for production of the fuel pump." Id.
In La Raia v. Superior Court, 150 Ariz. 118, 722 P.2d 286 (1986), the Supreme Court of Arizona rejected plaintiff's claim for intentional spoliation of evidence based on defendant landlord's destruction of pesticide can, which contained the pesticide that allegedly poisoned the plaintiff. The Court held that the tenant could recover if he stated a cause of action for exacerbation of injuries, and "there was no need to invoke esoteric theories or recognize some new tort." La Raia, supra 121.
In Wilson v. Beloit Corporation, 921 F.2d 765 (1990), the United States Court of Appeals, Eighth Circuit, stated that Arkansas did not recognize tort action for the spoliation of evidence. In this case, the Court held that an employer had no statutory duty to preserve parts of machinery for an employee's suit against a manufacturer, absent any agreement between employer and employee.
In Lauren Corp. v. Century Geophysical Corp., 953 P.2d 200 (1998), the Colorado Court of Appeals held that a trial court may impose attorney fees and costs as sanctions for bad faith and willful destruction of evidence, even absent a discovery order, as part of a sanction for defendant's intentional, willful and bad faith destruction of computer hardware. The court stated that, pursuant to C.R.C.P. 37, it was within its discretion to impose sanctions, in the form of an adverse inference, because "...Century's actions constitutes a blatant, willful bad faith destruction of evidence." Lauren, supra 953 P.2d 204. (Internal quotations omitted).
In Beers v. Bayliner Marine Corp., 236 Conn. 769, 675 A.2d 829 (1996), the Supreme Court of Connecticut held that the intentional spoliation of evidence by plaintiff in civil action does not entitle defendant to judgment as a matter of law, but the jury may draw the inference from the spoliation that the destroyed evidence would have been unfavorable to the party that destroyed it. Plaintiffs were allegedly injured when their boat went out of control. The plaintiffs, who destroyed the evidence, brought a product's liability action against the boat manufacturer. The Court reversed the superior court's granting of summary judgment for the defendant boat manufacturer.
In Lucas v. Christina Skating Center, 722 A.2d 1247 (1998), the superior court held that there are no causes of action for negligent and intentional spoliation of evidence and the proper remedy is for the court to instruct the jury as to permissible inferences. In this case, the plaintiff sought to amend their complaint that alleged that defendant intentionally suppressed and destroyed pertinent evidence, to include causes of action for negligent and intentional spoliation of evidence. The court denied plaintiff's motion to amend the complaint, stating that it could decide the case on other grounds.
In Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545 (1988), the Court of Appeals held that a motorist, injured in a collision with a truck, could not recover for alleged spoliation of evidence, regarding whether the truck was tampered with because Georgia law did not recognize the spoliation of evidence as a separate tort.
In Kuwahara v. Kuwahara, No. 922, 1916 WL 1435 (Hawaii Terr., May 12, 1916), the Supreme Court of the Territory of Hawaii stated that "¡ concealing or destroying evidential material is admissible; in particular, the destruction (spoliation) of documents as evidence of an admission that their contents are as alleged by the opponent. That the fraudulent conduct was in connection with other litigation does not necessarily exclude it." Id. 4.
The Supreme Court of Idaho has stated that, "the evidentiary doctrine of spoliation recognizes that it is unlikely that a party will destroy favorable evidence." Bromley v. Garey, 979 P.2d 1165, 1169 (1999). In Bromley, supra, the Court held that the doctrine of spoliation applies when a party with a duty to preserve evidence, intentionally destroys it, creating an inference that the destroyed evidence was unfavorable to that party. In this case, in which a hunting accident victim brought a negligence action against owner of alleged malfunctioning shotgun, that fact that examination 11 months after the accident did not show any defects in the gun, was not conclusive evidence that the owner had altered or intentionally destroyed the evidence.
The Court rejected plaintiff's argument that he was denied opportunity to discover the precise nature of the gun's defects because of the defendant's alleged alteration of the evidence. Without any evidence that the defendant replaced parts or repaired the gun, the Court refused to apply the spoliation doctrine. The Court applied the theory of negligence and stated that the even if the defendant had knowledge of the gun's alleged defect and had a duty to warn the plaintiff, this warning would not have prevented the unforeseeable circumstances creating injury to the plaintiff.
The Supreme Court of Illinois has held that, "an action for negligent spoliation of evidence can be stated under existing negligence law." Miller v. Gupta, 174 Ill.2d 120, 672 N.E.2d 1229, 220 Ill.Dec. 217 (1996), citing Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995). In Miller, supra, the Court stated that the plaintiff, who was suing the defendant physician for malpractice and claiming negligent spoliation of evidence, because the defendant doctor allegedly destroyed x-rays, must plead the elements of negligence. The Court held that, "¡ proof that a plaintiff's underlying medical malpractice claim was dismissed for failure to file a certificate of merit, standing alone, is simply not sufficient to fulfill the causation element of a negligent spoliation claim." Miller, supra 174 Ill.2d 131.
In Meyn v. State, 594 N.W.2d, 594 N.W.2d 31 (1999), the Supreme Court of Iowa held that Iowa does not recognize spoliation of evidence as an independent tort because it would generate endless litigation, which would be inconsistent with the policy favoring final judgment. The Court affirmed the decision of the District Court's granting of the states motion to dismiss the spoliation of evidence claim brought by plaintiff's product liability action against the manufacturer of prosthesis.
In Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987), the Supreme Court of Kansas answered the certified question posed by the United States District Court for the District of Kansas, of whether Kansas would recognize a common law tort action for spoliation of evidence, by stating that, "...in the absence of independent tort, contract, agreement, voluntary assumption of duty or special relationship of the parties, tort of intentional interference with prospective civil action by spoliation of evidence would not be recognized." Koplin, supra 241 Kan. 214.
In Monsanto Company v. Reed, 950 S.W.2d 811 (1997), which dealt with a products liability action, the Supreme Court of Kentucky stated that it would not recognize a new cause of action for the spoliation of evidence and would remedy the situation of destruction or missing evidence through evidentiary rules, missing evidence instructions, and civil penalties.
In Edwards v. Louisville Ladder Company, 796 F. Supp. 966 (1992), the United States District Court held that Louisiana would not recognize a claim for spoliation of evidence against defendant who allegedly failed to preserve a ladder that plaintiff was using at the time of the accident. The court rejected plaintiff's claim alleging the defendant's intentional or negligent spoliation of evidence, because there was no law imposing an obligation on the part of defendant to protect the plaintiff from the type of harm claimed.
In State v. Swett, 709 A.2d 729 (1998), the Supreme Judicial Court of Maine held that a police officer's failure to record an entire traffic stop and arrest, was not equivalent to the officer's knowing destruction of evidence, so as to warrant dismissal of charges. In State v. Combs, 704 A.2d 387 (1998), the Court stated that, "Maine law makes criminal the destruction of physical evidence that might aid in the discovery, apprehension, or conviction of a person accused of a crime." In this case, a police officer flushed marijuana and a completed summons down the toilet, in an attempt to bargain for a confession from the defendant. The Court stated, "in any event, Sergeant Carter's unauthorized and highly irregular act of destroying evidence of either a civil or criminal offense, raises serious doubts about the circumstances surrounding [the defendant's] confession." State v. Combs, supra 392. Nevertheless, the Court held that the confession was voluntary and not elicited by legally impermissible promises. Id.
In Miller v. Montgomery County, 64 Md.App. 202, 494 A.2d 761 (1985), the Court of Special Appeals of Maryland held that there is no separate cause of action for spoliation, because "...the remedy for the alleged spoliation would be appropriate jury instructions as to permissible inferences, not a separate and collateral action." Miller, supra 213.
Massachusetts does not adhere to the rule excluding evidence as a sanction for the spoliation of evidence. In Kippenhan v. Chaulk Services, Inc., 428 Mass. 124, 697 N.E.2d 527 (1998), the Supreme Judicial Court of Massachusetts held that sanctions may be appropriate for the spoliation of evidence, even if the act occurs before any legal action has commenced, if the threat of a lawsuit would be apparent to a reasonable person in the spoliator's position and the probable importance of the evidence to the resolution of the potential dispute would be evident.
The Court also held that the rule excluding evidence as a remedy for spoliation is not a blanket rule and does not apply when the defendant destroys the evidence and the plaintiff was not at fault in this destruction or loss or evidence. Id. In this case the plaintiff, who was allegedly injured when the stretcher collapsed while he was being loaded into the ambulance, was not precluded from using the testimony of an ambulance attendant concerning the pre-accident condition of the stretcher that was subsequently destroyed by the ambulance service.
In Lagalo v. Allied Corporation, 233 Mich.App. 514, 592 N.W.2d 786 (1998), the Court of Appeals of Michigan held that an instruction permitting adverse inferences from manufacturer's failure to produce evidence was not improper, but does not require evidence of intentional spoliation. "Such a presumption can be applied only where there was intentional conduct indicating fraud and a desire to destroy and thereby suppress the truth." Lagalo, supra 233 Mich.App. 519.
In DeLaughter v. Lawrence County Hospital, 601 So.2d 818 (1992), the Supreme Court of Mississippi refused to apply the "spoliation rule" to a hospital that negligently destroyed patient records. The Court held that if the hospital had deliberately destroyed records, an instruction should be given to the jury to regard the information in the records as being unfavorable to the hospital. "If the hospital negligently or intentionally failed to maintain records, necessary for this wrongful death action, the jury should return a verdict for the plaintiffs against the hospital for negligence."
In Brown v. Hamid, 856 S.W.2d 51 (1993), the Supreme Court of Missouri held that it would not recognize an independent tort for the spoliation of evidence. The Court stated that there was no need to recognize an independent tort for negligent maintenance of medical records, when a cause of action could be stated under existing negligence law without creating a new tort.
In State v. Brown, 982 P.2d 468 (1999), the Supreme Court of Montana held that a defendant's due process rights were not violated by the State's alleged suppression of evidence. The Court stated that the defendant, in order to reverse the conviction of attempted sexual intercourse and sexual intercourse without consent, would have to show that lost or destroyed evidence would have been favorable to him. The Court stated:
In order to reverse a conviction a defendant must show that the lost of destroyed evidence had exculpatory value which would have changed the outcome of this trial. When the State, due to negligence, loss, replacement, or destruction, is unable to produce certain physical evidence in the prosecution of the case, reversal of a conviction is not necessary, where the actual objects were not fatal to the defense, were not exculpatory in nature, and the result would not have been affected by the outcome." State v. Brown, supra 472.
In Re Kamrath's Estate v. Kamrath Et Al, 206 N.W. 770 (1925), the Supreme Court of Nebraska stated that "¡ absent evidence connecting the defendant with the alteration, the act would amount to spoliation merely and would be wholly ineffective to in any manner change, impair, or alter the rights of the real owner of the instrument." In Re Kamrath's Estate, supra 772. In this case, the plaintiff's filed an action against the executor of estate for fraud in causing a new certificate of deposit to be issued after the depositor's death. The Court reasoned that the alleged spoliation was immaterial to affect the rights of the parties, so long as the original certificate could still be enforced.
In Reingold v. Wet 'n Wild Nevada, 113 Nev. 967, 944 P.2d 800 (1997), the Supreme Court of Nevada held that a watermark's deliberate destruction of records concerning prior accidents at the water park, before the statute of limitations had run on these accidents, was willful suppression of evidence. Even though the Court did not charge the defendant's with the spoliation of evidence, the Court drew an analogy to the spoliation of evidence in stating that the trier of act may draw an adverse inference from the destruction of this relevant evidence.
In Rodriguez v. Webb, 141 N.H. 177, 680 A.2d 604 (1996), the Supreme Court of New Hampshire held that the trial court error recognizing the tort of intentional spoliation of evidence, was harmless because the only evidence relevant to the spoliation count was admissible on the negligence count. In this case the plaintiff was injured by a baler and brought action against the owner of the baler alleging negligence and intentional spoliation of evidence. The trial court properly instructed the jury not to consider the spoliation count during its deliberations on the negligence count.
Recently, in Trull v. Volkswagen of America, Inc., No. 98-1812, 1999 WL 508811 (1st Cir. N.H. July 22, 1999), the United States Court of Appeals for the District of New Hampshire held that a district court did not abuse its discretion in excluding evidence of condition of seatbelts after an accident, as a sanction for spoliation, while the vehicle was in possession of plaintiff's insurer.
New York has refused to adopt an independent tort for the intentional spoliation of evidence. In Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774 (App. Div. 1993), the Supreme Court of New York county held that an employer who misplaced the coat that he had agreed to preserve for an employee's product's liability action against the coat's manufacturer, was not the spoliation of evidence. The court stated that "the spoliation of evidence is not recognized as a cognizable tort action in New York." Weigl, supra 755. The plaintiff had common-law causes of negligently and intentionally impairing employee's right to sue third-party tort-feasor.
Recently, in Conderman v. Rochester Gas & Electric, 693 N.Y.S.2d 787 (1999), the Supreme Court, Appellate Division, Fourth Department of New York, held that the utility company would not be subject to sanctions for spoliation of evidence and owed no duty to preserve utility poles for possible future litigation by occupants of vehicles who were struck by falling poles. The court stated that a defendant should not be sanctioned for discarding items in good faith pursuant to its normal business practices.
In Holloway v. Wachovia Bank & Trust Company, 109 N.C.App. 403, 428 S.E.2d 453 (1993), the Court of Appeals of North Carolina held that the plaintiff was not entitled to instructions on the issue of spoliation of evidence, with respect to a gun allegedly pointed at her and her family by the defendant debt collector, during repossession of her automobile. The defendant had admitted that the gun was in her possession at the time of the incident and described the gun to the jury.
In Bachmeier v. Wallwork Truck Centers, 544 N.W.2d 122 (1996), the Supreme Court of North Dakota held that summary judgment may be appropriate as an appropriate sanction for the spoliation of evidence or where the plaintiff has failed to provide key evidence in action. In this case, the plaintiff failed to preserve the evidence necessary for action against defendant truck manufacturer. The Court stated that sanctions were appropriate even though there was no showing that the destruction of the evidence was malicious.
In Barker v. T. Bledsoe, 85 F.R.D 545 (1979), the court held that an autopsy performed without notice to the respondents, before a suit was filed, created the presumption that such evidence would have been unfavorable to the party who did the act. The court would remedy this situation by either dismissing the suit or attempt to ameliorate the "ill-gotten" advantage. Id.
In Stephens v. Bohlman, 138 Or.App. 381, 900 P.2d 208 (1996), where the plaintiff brought a medical malpractice action against physician and hospital, the Court of Appeals of Oregon held that "¡ evidence that an alleged tort feasor attempted to conceal the true cause of injury, at least permits the jury to draw an unfavorable inference." Id.
In Elias v. Lancaster, 710 A.2d 65 (1998), the superior court held that Pennsylvania does not recognize a cause of action for third party's negligent spoliation of evidence in existing or probable civil case. In this case, the court stated that the hospital had no duty to preserve wires extracted from the plaintiff's body, so plaintiff could use them as evidence in potential product's liability action.
The Supreme Court of Rhode Island has not distinguished between the intentional or negligent tort for spoliation of evidence and simply refers to the tort as the "doctrine of spoliation of evidence". In New Hampshire Insurance Co. v. Rousell, 732 A.2d 111 (1999), the Court held that an automobile insurer's failure to produce the actual insurance policy in the coverage dispute did not create an insurmountable inference of spoliation against the insurer because both the insurer and insured were guilty of losing the policy. Id.
The Court stated that, "the doctrine of spoliation of evidence merely permits an inference that the destroyed evidence would have been unfavorable to the despoiler." Id. at 112. Since there was no evidence of complicity on the part of the insurer in the disappearance of the policy, there was no proof to substantiate the claim that the destroyed evidence would have been unfavorable to the insurer.
In Wisconsin Motor Corp. v. Green, 79 S.E.2d 718 (1954), the Supreme Court of South Carolina held that when a retailer, who testified that he had paid for particular goods, but could not produce bookkeeping records to substantiate that payments had been entered, justified the instruction of an adverse inference that records would not have shown such payments.
In State v. Kietze, 85 S.D. 502, 186 N.W.2d 551 (1971), the Supreme Court of South Dakota held that although, "¡Kit is the rule that spoliation of evidence creates an inference or presumption that it would not have supported the charges against the defendant from this record we are unable to agree that the defendant was prejudiced by the destruction of cigarette butts." Id. In this case of unlawful possession of narcotic drugs, the Court rejected the defendant's argument that the destruction of the cigarette butts by the police, which he alleged contained nothing but tobacco, denied him a fair trial, since there was other evidence that was introduced at trial.
In State v. Hostetler, No. 02C01-9707-CC-00294 C.C.A., 1998 WL 136536, (Tenn. Crim. App., March 27, 1998), the Criminal Court of Appeals held that the state's failure to preserve evidence did not support a finding of negligent spoliation of evidence or violate the defendant's rights to due process, because there was no proof that the state acted in bad faith or that the evidence would have been exculpatory for the accused.
In order to state a claim for spoliation of evidence, under the circumstances in this case, the court stated that the following factors must be met:
- the prosecution must have suppressed the evidence
- the suppressed evidence must have been favorable to the accused
- the evidence must have been material
- accused must make a proper request for the production of the evidence
- a showing of bad faith in the failure to preserve the evidence. Id.
Texas is the most recent state to outright reject an independent spoliation tort. In Trevino v. Ortega, 969 S.W.2d 950 (Tex. 1998), the plaintiffs, whose child was injured at birth, sued their physician for intentional spoliation of evidence because medical records from the birth had been destroyed. The Court held that, "Texas does not recognize spoliation as a tort cause of action." Trevino, supra 952. The Court reasoned that a new tort was not necessary because it was a discovery issue and there were other available remedies.
In Burns v. Cannondale Bicycle Company, 876 P.2d 415 (1994), the Court of Appeals of Utah held, that even if a bicycle had a defective part and the repairman discarded the part, the doctrine of spoliation of evidence, if adopted in Utah, would not apply to establish that the part was defective. The Court reasoned that the spoliation doctrine was not applicable because the plaintiff had not brought suit for his injuries or notified the repairman that he was considering such action. Furthermore, at the time the part was allegedly discarded, the repairman had no general duty to retain the part.
In Lavalette v. Noyes, 124 Vt. 353, 205 A.2d 413 (1964), the Supreme Court of Vermont held that, "no presumption of falsity of testimony of owner of land as to prior existence of writing, concerning proposed logging operations on owner's land arose from owner's destruction of memorandum, where owner was not a party to suit." Id.
In Austin v. Consolidation Coal Company, 501 S.E.2d 161 (1998), the Supreme Court of Virginia held that the plaintiff, injured on the job when a hose burst, had no cause of action against the defendant for intentional or negligent spoliation of evidence because the defendant employer had no legal duty to preserve the evidence. The Court stated that the following essential elements of a cause of action for a tortious act must be met:
- legal obligation of defendant to plaintiff
- violation of breach of duty or right
- harm or damage to the plaintiff as a proximate cause of violation or breach. Id.
In Adkins v. K-Mart Corp, 511 S.E.2d 840 (1998), the Supreme Court of Appeals of West Virginia held that dismissal of products liability action against the store and manufacturer of a gas grill, based on spoliation of evidence was not warranted, when the party who allegedly destroyed the grill was not a party to the suit. The Court stated that, "It appears there may be a valid cause of action for spoliation of evidence in appropriate cases. This is not an appropriate case to determine the proper sanction(s) for spoliation of evidence." Adkins, supra 847.
In Garfoot v. Fireman's Fund Ins. Co., 599 N.W.2d 411 (1999), the Court of Appeals of Wisconsin held that, "¡ dismissal as a sanction for destruction of evidence requires a determination that there was a conscious attempt to affect the outcome of the litigation or a flagrant knowing disregard of the judicial process." Id. In this case, where the victim of a propane gas explosion brought a negligence suit against the pipe and furnace installers, the Court of Appeals reversed and remanded the case, stating that it is "¡ the trial court's decision whether to impose sanctions for the destruction or spoliation of evidence, and what sanction to impose, is committed to the trial court's discretion." Id.
In Hatch v. State Farm Fire and Casualty, 842 P.2d 1089 (1992), the Supreme Court of Wyoming held that allegations that defendants concealed information from insured and withheld or concealed documents from prosecutor tends to show that the defendants may have abused the duty of good faith and fair dealing. These actions did not amount to the spoliation of evidence.
VII. REMEDIES FOR SPOLIATION
1. THE SPOLIATION INFERENCE
The spoliation inference, although not applicable to third-party spoliators, allows the jury to infer that the evidence that the spoliator destroyed would have been unfavorable to the spoliator. Some jurisdictions require that the injured party prove that the spoliator fraudulently and intentionally destroyed the evidence before such an instruction is made to the jury. The inference made to the jury is rebuttable, not conclusive. The presumption shifts the burden of proof to the spoliator to prove that the evidence was not unfavorable. Brown v. Hamid, 856 S.W.2d 51, 56 (1993).
However, most jurisdictions do not allow an adverse inference to substitute for an essential element of an underlying claim. The plaintiff must still prove all the elements of the underlying claim. Edwards v. Louisville Ladder Co., 796 F.Supp. 966, 971 (1992).
2. SANCTIONS IMPOSED BY THE COURT
Courts can impose sanctions on the spoliators of evidence, either through power granted by discovery rules of civil procedure or the inherent power of the court. Federal Rule of Civil Procedure 37 grants the court the power to impose sanctions against parties for failure to follow court orders and comply with discovery requests. For actions that occurred prior to the start of litigation, courts have the inherent power to impose sanctions on pre-litigation spoliators. Bachmeier v. Wallwork Truck Ctrs., 507 N.W.2d 527, 533 (1993).
3. CRIMINAL LIABILITY AND OBSTRUCTION OF JUSTICE
Obstruction of justice statutes allow for criminal liability for spoliators of evidence. Penalties range from imposition of fines to imprisonment. Cal. Penal Code Section 135 (West 1998). However, some courts do not believe that these statutes serve as a sufficient deterrent because many violations are only considered misdemeanors and there is a lack of prosecution of spoliators in civil proceedings under these criminal obstruction of justice statutes. Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr 829 (1984).
4. ATTORNEY DISCIPLINE
Pursuant to Model Rules of Professional Conduct 3.4(a), an attorney shall not "¡ unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act." An attorney may be subject to fines, suspension, or liability in a malpractice action. Model Rules of Professional Conduct Rule 3.4(a) (1993).