In this Issue:
Spoliation of Evidence — The Views of Four States
Spoliation is the failure to preserve evidence of known relevance to anticipated litigation. The duty to preserve evidence flouted by the spoliator can arise from a court order, a discovery request, a statute or administrative regulation, a contract, and perhaps common law.
Spoliation can be negligent, intentional, or in bad faith, and can be committed by plaintiffs, defendants, or third parties, including manufacturers, employers, governmental entities, and insurance companies.
To remedy the prejudice suffered by a party denied access to such relevant evidence, courts have either recognized an independent cause of action for negligent or intentional spoliation of evidence or have allowed trial judges broad discretion to determine what, if any sanctions are appropriate. Available sanctions can be severe, including:
- monetary sanctions
- attorney discipline
- preventing the spoliator from introducing certain evidence at trial
- preventing the spoliator’s expert from testifying
- an adverse inference/rebuttable presumption jury instruction that the evidence at issue was discarded or destroyed because it would be detrimental to the spoliator
- dismissing the plaintiff’s complaint; or
- allowing the plaintiff to file an independent suit for the tort of evidence spoliation.
The following articles set forth the treatment of evidence spoliation in four representative states.
Spoliation of Evidence in California
The first California case to recognize spoliation of evidence as an independent cause of action was Smith v. Superior Court, 151 Cal. App. 3d 498, 198 Cal. Rptr. 829 (1984). That was changed by the seminal decision in Cedars-Sinai Medical Center v. The Superior Court of Los Angeles County, 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248 (1998).
In Cedars-Sinai, the hospital petitioned for a writ of mandate to vacate an order by the Superior Court which granted plaintiff’s motion in a medical malpractice claim for leave to amend the complaint to add a cause of action for intentional spoliation of evidence. The Court of Appeal denied the petition, and the Supreme Court granted review. In an opinion by Justice Kennard, the court held that there is no tort remedy for the intentional spoliation of evidence by a party to the underlying case if the spoliation victim knew or should have known of the spoliation before the decision on the merits of the underlying action.
The court engaged in a balancing test. It weighed whether a tort remedy for intentional first party spoliation of evidence would ultimately create social benefits exceeding those created by already-existing remedies for such conduct, and outweighing the costs and burdens such a remedy would impose. On balance, the court decided that such a tort remedy would impose undesirable social costs and would run counter to important polices against creating tort remedies for litigation-related misconduct. The court found already-existing and effective non-tort remedies for this problem.
The court held that the law has a remedy for litigation-related misconduct by imposing sanctions, rather than creating new derivative torts. Thus, the court favored the increased use of sanctions within the underlying lawsuit as an effective remedy for this conduct. The court reasoned that “[w]eighing against our recognition of a tort cause of action for spoliation in this case [is] the strong policy favoring use of nontort remedies rather than derivative tort causes of action to punish and correct litigation misconduct….” Id.
Chief among the remedies for intentional spoliation of evidence is the evidentiary inference in California Evidence Code Section 413 and the standard BAJI No 2.03 jury instruction. Evidence Code 413 states, “In determining what inference to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s …willful suppression of evidence relating thereto…” BAJI No. 203 (8th ed. 1994) provides an inference instruction as well: “If you find that a party willfully suppressed evidence in order to prevent its being presented at this trial, you may consider that fact in determining what inferences to draw from the evidence.”
In addition to the evidentiary inferences, the court pointed to a broad range of sanctions for the misuse of the discovery process under California Code of Civil Procedure Section 2023. These include monetary sanctions, contempt sanctions, issue sanctions ordering that designated facts be taken as established or striking part or all of the pleadings, or dismissing the entire action. Of course, another important deterrent to intentional spoliation of evidence is the disciplinary sanctions of the California State Bar. Moreover, California Penal Code Section 135 creates criminal penalties for spoliation of evidence.
In short, the court held that these non-tort remedies for intentional spoliation of evidence are both extensive and effective for what the court did not find to be a widespread problem.
Cedars-Sinai dealt only with first party intentional spoliation of evidence and left open the question of whether a separate tort cause of action could be stated against third parties who intentionally destroy evidence. This question was subsequently decided in Temple Community Hospital v. The Superior Court of California, 20 Cal. 4th 464, 84 Cal. Rptr. 2d 852 (1999) where the court held that many of the same considerations that bar a tort claim for intentional destruction of evidence by a first party support the bar to a separate tort cause of action for this conduct against a third party who intentionally destroys evidence.
In Temple, a hospital patient who had been severely burned while undergoing a surgical procedure involving the use of an electrocautery surgical tool could not recover against the hospital on a claim for intentional spoliation of evidence by a third party based on the failure of the hospital to preserve the surgical tool and oxygen tank and mask. The court pointed out that there is no way of telling what precisely the evidence would have shown and how it would have weighed in favor of the spoliation victim. The elements of causation and damages, therefore, would be nearly impossible to prove, and permitting a cause of action that necessarily would be based on speculation and conjuncture could burden the courts with arbitrary and unreliable claims. Moreover, the court held that to the extent a real problem of intentional spoliation by third parties exists, it often will be the case that such spoliation will be exposed in the trial of the underlying action. If the third party spoliator is acting at the behest of a party, a negative inference can be drawn against that party.
In sum, the court in Temple concluded that the benefits of recognizing a tort cause of action, in order to deter third party intentional spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses and the judicial system. Such burdens would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.
The issue of negligent spoliation as a separate tort cause of action was addressed in Farmers Insurance Exchange v. The Superior Court of San Bernardino, 79 Cal. App. 4th, 1400, 95 Cal. Rptr. 2d. 51 (2000). In that case, the victim of a single-vehicle automobile accident allegedly involving a defective tire sued the vehicle’s insurer who took possession of the car and tire and lost them. The victim alleged a cause of action against the insurer for negligent spoliation of evidence. The Court of Appeal held that a tort cause of action for negligent spoliation of evidence cannot be maintained. The court stated, “Even assuming it is established that the defective tire caused the single vehicle accident, the harm resulting from the insurer’s alleged loss of the car and tire after taking them into possession was still too uncertain to permit a passenger, who was intending to bring a product liability action, to sue the insurer for negligent spoliation of evidence.” Id.
In its argument, relying on the holdings in Cedars-Sinai (supra), and Temple (supra), Farmer’s position was simply stated: “If a party cannot be held liable for intentionally destroying or suppressing evidence that would be relevant to a lawsuit, surely the party cannot be held liable if it negligently commits these acts.” The court agreed.
Thus, the policy considerations that led the Supreme Court of California to refuse to recognize tort causes of actions for both first party and third party intentional spoliation of evidence apply with equal force when the loss or destruction of evidence results from negligence.
In summary, it is important for an attorney to take due care to ensure his client safeguard the product. A party’s loss or destruction of evidence may lead to sanctions or an instruction permitting the jury to draw inferences adverse to that party. However, on balance, California courts have held that the cost of creating an independent cause of action for international or negligent spoliation of evidence is outweighed by the burdens to the court and society.
Contact for more information: Peggy Kolkey
Spoliation of Evidence in Minnesota
Minnesota does not recognize an independent spoliation tort. Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 437 (Minn. 1990). Minnesota does, however, recognize and impose a variety of spoliation sanctions where one party gains an evidentiary advantage over the opposing party by failing to preserve relevant evidence when litigation is foreseeable. See Patton v. Newmar Corp., 538 N.W.2d 116, 118 (Minn. 1995).
A party has a duty to preserve all evidence that the party knows or should have known is relevant to imminent litigation; the intent of the spoliator is irrelevant. Patton, 538 N.W.2d at 119. A spoliation sanction is not intended to punish the wrongdoer; it is intended to remedy the harm suffered by a party who was not afforded the opportunity to examine the evidence. Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 470-71 (Minn. App. 1997). The spoliation defense applies even when a non-party is responsible for the destruction of the evidence. See Garrison v. Farmers Coop. Exch., 2000 WL 1693630, at *4 (Minn. App. 2000).
The available sanctions for spoliation include the exclusion of evidence, including expert testimony, even though, in some instances, such exclusion results in the dismissal of the lawsuit. Patton, 538 N.W.2d at 119 (dismissal of the claims was only the "inevitable consequence" of the sanction excluding the expert testimony, not a part of the sanction itself); Hoffman v. Ford Motor Co., 587 N.W.2d 66, 70-71 (Minn. App. 1998). In Auto-Owners Ins. Co. v. Heggies Full House of Pizza, Inc., 2003 WL 22293643, at *12-13 (Minn. App. 2003), the Minnesota Court of Appeals affirmed the trial court's outright dismissal citing the defendant's inability to conduct an independent investigation of the fire scene and plaintiff's "immense evidentiary advantage" derived from destroying the fire scene and saving only the alleged defective products.
In Minnesota, sanctions for spoliation of evidence will be imposed where a party: (1) destroyed, or allowed the destruction of; (2) discoverable material; (3) which the party knew or should have known; (4) was relevant to pending, imminent, or reasonably foreseeable litigation; and (5) there is resulting prejudice to the opposing party.
Contact for more information: Russell S. Ponessa
Spoliation of Evidence in Arizona
Arizona has refused to recognize a separate tort of spoliation. La Raia v. Superior Court, 150 Ariz. 118, 121, 722 P.2d 286, 289 (1986). The La Raia court held that a landlord’s failure to provide a complete and accurate list of pesticides it used on a tenant’s apartment could be remedied “within the realm of existing tort law.” Id. However, Arizona courts have recognized other sanctions as a way to penalize the spoliation of evidence. These sanctions can, though rarely, include dismissal, if the actor’s conduct falls in the intentional rather than the negligent realm along the spectrum of fault. One common sanction is an adverse inference jury instruction that the missing evidence would have been harmful to the offender’s case or defense.
In Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 955 P.2d 3 (App. 1997), the court of appeals stated that “litigants have a duty to preserve evidence which they know, or reasonably should know, ‘is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.’” Id. at 250, 955 P.2d at 6 (citations omitted). Although the court determined that dismissal was too harsh a sanction, it advised that “issues concerning destruction of evidence and appropriate sanctions should be decided on a case-by-case basis, considering all relevant factors” since destruction of potentially relevant evidence occurs “along a continuum of fault-ranging from innocence through the degrees of negligence to intentionally” and hence the “resulting penalties vary correspondingly.” Id. (citations omitted). The court admonished that “the totality of circumstances” should be viewed when imposing a sanction. Id.
In Souza the court also examined the impact and prejudice on the defendant of plaintiff’s destruction in reversing the dismissal. Defendant in that case never requested to inspect the car at issue or that plaintiff preserve it. Id. at 251, 955 P.2d at 7. Nor did its destruction hinder the defendant’s defense or its ability to present causation experts. Id. In conclusion, the Souza court faulted the trial court for not thoroughly considering “other, less severe, sanctions before resorting to the most extreme” sanction of dismissal, since “Arizona courts have expressed a preference for less drastic sanctions than dismissal,” which “should be utilized” when available. Id. (citation omitted).
Most recently, in Smyser v. City of Peoria, 215 Ariz. 428, 160 P.3d 1186 (App. 2007), the court of appeals revisited the spoliation issue in a medical malpractice and wrongful death action against a municipality. On appeal, the plaintiff argued the trial court prejudiced her ability to prove her case by refusing to instruct the jury that it could draw an adverse inference from the City’s failure to preserve data strips from the cardiac monitoring device used during the ambulance ride to the emergency room. Id. at 439, 160 P.3d at 1197. The court recognized that the trial court has “substantial discretion in determining how to instruct the jury” and that the trial court should give an instruction “if the evidence supports it, [that] properly states the law, and [that] relates to an important issue and is not duplicative or cumulative.” Id. Moreover, the court ruled that even erroneous instructions will not compel reversal “unless the error prejudiced the appellant’s substantial rights.” Id.
In refusing to find reversible error, the Smyser court noted that while the cardiac strips were missing, “no evidence showed who caused their loss or that the City had intentionally or negligently destroyed them.” Id.; see also Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993) (expressly recognizing that a culpable mental state or bad faith is not required). Rather, the paramedic simply testified that he believed the decedent had been connected to a heart monitor but he did not know what happened to the strips upon arrival at the hospital. Id. The court also questioned the importance of the cardiac strips since the ER doctor did not even recall looking at them or requesting to do so once the decedent arrived at the hospital. Id. Moreover, the court assessed that determining precisely when the decedent’s heart stopped was not critical to determining whether the paramedics fell below the standard of care, since the ER doctor testified that the decedent was in full arrest upon arrival and that the paramedics should have started resuscitation efforts earlier. Id. at 440, 160 P.3d at 1198. In light of these facts, the court ruled only that, in the absence of evidence of intentional or bad faith destruction of evidence, a spoliation instruction “was not mandatory” and the failure to give it was not reversible error, “particularly when [plaintiff] had other means to establish what the strips likely would have revealed.” Id.
Contact for more information: Felice F. Guerrieri
Spoliation of Evidence in Florida
“Spoliation of evidence is a unique tort. I believe in essence the plaintiff is saying, ‘I have a case that is worth x number of dollars and because you spoiled my evidence, I can’t get that amount.’” Builder’s Square, Inc v. Shaw, 755 So.2d 721, 727 (Fla. Dist. Ct. App. 1999) (Frusciante, J., concurring in part, dissenting in part).
Spoliation of evidence was introduced in Florida by the Third District Court of Appeals in Bondu v. Gurvich, 473 So.2d 1307 (Fla. Dist. Ct. App. 1984). Bondu was a wrongful death case brought against a defendant hospital. The spoliation issue was presented as a result of the hospital’s loss of the critical anesthesia records upon which the plaintiff was to base her claims. The trial court entered summary judgment against the plaintiff. The appellate court reversed, drawing upon existing California law to create a new cause of action.
Subsequent to Bondu, Florida appellate courts continued to expand the spoliation cause of action. In addition to where a plaintiff claims an inability to move forward because a critical piece of evidence is lost or destroyed, or cannot be examined to determine whether is was defective, dangerous, or was the cause of the claimant’s injuries, defendants can also claim spoliation as a defense when evidence has been lost or destroyed by an opposing party.
In addition, a split of authority arose after Bondu among the appellate circuits as to whether or not a spoliation claim could be brought directly against another entity or party if that entity or party were also the defendant in the underlying claim.
This question was answered in the negative by the Florida Supreme Court in Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005). In effect, twenty years after Bondu established spoliation tort damages in the first-party context, the Florida Supreme Court disapproved of Bondu, and held that rule-based and evidentiary-based methods of handling intentional and negligent spoliation discussed in Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987) were the preferable way to handle spoliation by “first-party” defendants.
Further, the Martino case did not prohibit the second type of spoliation claim, which is a “third-party” claim for money damages. See Royal v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 2004). These claims normally arise when a person or an entity that is not a party to the underlying action has lost, misplaced, or destroyed evidence critical to that action.
Where the loss or destruction of relevant evidence involves a party, the court will normally treat the issue as a discovery violation under Florida Rule of Civil Procedure 1.380. Sanctions are entirely discretionary, and the court will consider whether there is prejudice to the opposing party, whether the prejudice can be cured, the practical importance of the evidence in question, whether there is bad faith surrounding the loss, the possible abuse if the evidence is not excluded, and whether the party had actual possession or control of the evidence.
Contact for more information: Paul Buschmann
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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