“One who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances.” Restatement (Second) of Torts § 870 (1977). This Restatement section is powerful because it manages to encapsulate, in fewer than 30 words, one of the most fundamental concepts of our legal system, namely that acts committed intentionally with the purpose to cause harm should be properly punished when harm does indeed result. As elementary as this concept may seem, a vast majority of states simply refuses to recognize this principle when it comes to the intentional spoliation of evidence.
July 18, 2012 Articles
Intentional Spoliation: No Evidence, No Tort, No Problem?
Every jurisdiction should punish intentional and malicious conduct directly, especially where such conduct is aimed toward circumventing the search for truth.
By Joseph C. Sullivan
Spoliation is “the destruction or significant alteration of evidence.” Tinder v. Lewis County Nursing Home District, 207 F. Supp. 2d 951, 958 (E.D. Mo. 2001); see also Desselle v. Jefferson Parish Hosp. Dist. No. 2, 887 So. 2d 524, 534 ((La. App. 5th Cir. 2004) (“The theory of spoliation of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use”). As those who watch legal television dramas can attest, spoliation can take the form of shredded documents (such as a police report or medical records), “lost” or “misplaced” pieces of real evidence (such as a knife or gun), or otherwise altered evidence (such as tampered audio or video recordings). Spoliation is condemned in every jurisdiction in the United States, yet only a handful of states actually recognize intentional spoliation as an actionable tort. The vast majority of states prefer to utilize jury instructions and negative inferences to combat its effects. If the legal system seeks to assign liability and an appropriate sanction to those who commit intentional wrongs, it would seem obvious that those who intentionally destroy evidence to deliberately hinder that system should be subject to liability. Nonetheless, while every state condemns and openly memorializes their steadfast opposition to intentional spoliation, few are willing to recognize a cause of action to deter and punish such behavior from occurring in the first place.
For example, while the courts of New York condemn intentional spoliation, they do not recognize spoliation of evidence as a cognizable tort action. Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774, 776, 158 Misc. 2d 753, 757 (N.Y. Gen. Term 1993). In Weigl, the plaintiff was working in a university laboratory when she was engulfed in flames as a result of an inadvertent ignition of experimental materials on her laboratory coat. When the plaintiff requested the laboratory coat during the course of discovery, she was informed by the university that it was “unable to locate” the coat. 601 N.Y.S.2d at 777, 158 Misc. 2d at 755. The plaintiff asserted a claim for spoliation of evidence that was dismissed via summary judgment on the ground that New York does not recognize that claim. Likewise, the Supreme Court of New York refused to consider a claim for spoliation of evidence where the evidence indicated that a physician destroyed the medical records of the plaintiff. Hillman v. Sinha, 77 A.D.3d 887, 910 N.Y.S.2d 116 (N.Y. App. Div. 2nd Dept. 2010). The Supreme Court of New York held that “existing New York remedies . . . including preclusion of proof favorable to the spoliator, adverse inference instructions, or, in the extreme cases, striking responsive pleadings or dismissing the complaint . . . were adequate to deter spoliation and to appropriately compensate its victims.” 77 A.D.3d at 888, 910 N.Y.S.2d at 117.
Texas also refuses to recognize a claim for intentional spoliation, preferring instead to rely on an adverse-inference instruction. For instance, in Trevino v. Ortega, 969 S.W.2d 950, 951 (Tex. 1998), the Supreme Court of Texas determined that it would not recognize spoliation as a separate cause of action because it “does not give rise to independent damages, and because it is better remedied within the lawsuit affected by spoliation . . . .” The Supreme Court of Texas explained that Texas courts were already equipped with tools to punish spoliation, “ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions.” 969 S.W.2d at 953. Trevino was later cited by a Court of Appeals of Texas case that held that Texas courts were “averse to creating a new tort that would only lead to duplicative litigation, encouraging inefficient litigation of issues better handled within the context of the core cause of action.” McIntyre v. Wilson, 50 S.W.3d 674, 686 (Tex. App. 2001).
California, which at one time recognized intentional spoliation as a separate cause of action, now holds that “a tort cause of action does not lie against a person who has intentionally destroyed or suppressed evidence relevant to a lawsuit.” Warden v. Cross, 94 Fed. Appx. 474, 475 (9th Cir. 2004) (applying California law). The Supreme Court of California specifically held that a tort remedy for spoliation of evidence would produce an “endless spiral of lawsuits over litigation-related misconduct.” Temple Cmty. Hosp. v. Superior Court, (1999) 20 Cal. 4th 464, 473, 976 P.2d 223, 230 (Cal. 1999). Puzzlingly, the same Supreme Court of California previously held that “[n]o one doubts that the intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits . . . destroying evidence can also increase the costs of litigation . . . .” Cedars-Sinai Medical Center v. Superior Court, (1998) 18 Cal. 4th 1, 8, 954 P.2d 511, 515 (1998). Apparently, at some point between 1998 and 1999, California courts decided that preventing derivative actions was a more worthwhile goal than combating acts intended to “destroy fairness and justice.” 18 Cal. 4th at 8, 954 P.2d at 515.
While just a small sampling of cases throughout the United States, the aforementioned citations are nonetheless instructive of the inherent hypocrisy that states demonstrate when it comes to intentional-spoliation claims. Courts are expressly tasked with the role of determining whether acts taken by litigants were done intentionally and with malice, yet if those acts concern spoliation of evidence, the vast majority of courts refuse to even consider the issue. Moreover, the recognition that intentional spoliation is a condemnable act that destroys fairness and increases litigation costs is, on most occasions, immediately followed by an explicit condemnation of the creation of a separate tort to deter and punish such behavior.
If intentional-spoliation claims are being adequately remedied and prevented via adverse inferences and other evidentiary safeguards, why would there be any concern of “duplicative” or an “endless spiral” of derivative actions as California and Texas warn? Can Texas truly denounce the creation of a tort for intentional spoliation as “encouraging inefficient litigation” while at the same time reminding its citizens that the imposition of the death penalty could serve as a prospective remedy? If courts recognize that damages caused by intentional and malicious acts can serve as the basis for cognizable claims before a lawsuit is filed, why should that analysis change once a lawsuit is actually filed? Indeed, any intentional act that is taken to frustrate the legal process and that results in unnecessary increased costs, incomplete discovery, and speculative verdicts should be especially targeted for deterrence and sanctions via a cognizable cause of action.
While most states refuse to recognize a claim for intentional spoliation, a handful of states have allowed the claim as a separate cause of action. Alaska, ever the frontier state, initially recognized the claim of intentional spoliation of evidence in Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986). In Hazen, arresting officers recorded the arrest of the plaintiff for suspected prostitution. During an evidentiary hearing, the plaintiff requested that the audiotape be produced. The attorney for the arresting officers advised the court that the tape would be preserved. However, “immediately after that statement, a male voice whispered, ‘Wait ’til you hear what is on the tape now.’ This remark was not audible in the open courtroom but was picked up by a microphone.” 718 P.2d at 459. After an investigation of what appeared to be tampering with the audio contained on the arrest tape, the plaintiff moved to assert a claim for alteration and destruction of evidence. The Supreme Court of Alaska, relying on a now overruled California case, recognized the plaintiff’s claim as a valid cause of action. The Supreme Court of Alaska “pointed out that ‘new and nameless torts are being recognized constantly’ and that the ‘common thread woven into all torts is the idea of unreasonable interference with the interests of others.’” 718 P.2d at 463–64; citing Smith v. Superior Court for the County of Los Angeles, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829 (Cal. App. 1984) (overruled in Cedars Sinai, supra). Analogizing intentional-spoliation claims with the pre-existing tort of intentional interference with business relations, the Supreme Court of Alaska concluded that “[i]f the arrest tape was intentionally altered, this was an unreasonable interference with these expectancies that can be remedied in tort.” 718 P.2d at 464.
The Supreme Court of Ohio established the tort of intentional spoliation in Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 615 N.E.2d 1037 (Ohio 1993). Smith requires the following factors to assert a spoliation claim: pending or probable litigation involving the plaintiff, knowledge on the part of the defendant that litigation exists or is probable, willful destruction of evidence by the defendant designed to disrupt the plaintiff’s case, disruption of the plaintiff’s case, and damages proximately caused by the defendant’s acts. 615 N.E.2d at 1038, 67 Ohio St. 3d 28. The Supreme Court of New Mexico joined Ohio in recognizing the tort of intentional spoliation in Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995) (overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001)). In Coleman, the plaintiff fell 66 feet at a potash mine after a lift on which she was riding malfunctioned. During the course of discovery, it was revealed that certain parts of the lift were lost when the lift was dissembled by the defendant. The plaintiff moved to assert a claim for the intentional spoliation of evidence. The Supreme Court of New Mexico recognized the plaintiff’s claim, holding that “the intentional destruction of potential evidence in order to disrupt or defeat another person’s right of recovery is highly improper and cannot be justified.” 120 N.M. at 649, 905 P.2d at 189.
West Virginia likewise recognizes the tort of intentional spoliation of evidence. See Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003). In Hannah, the Supreme Court of Appeals of West Virginia stated its belief that “intentional spoliation of evidence is misconduct of such a serious nature; the existing remedies are not a sufficient response.” 213 W. Va. at 715, 584 S.E.2d at 571. The Supreme Court of Appeals of West Virginia adopted the following elements, which it explained had been accepted by the majority of jurisdictions recognizing the tort: pending or probable civil litigation, knowledge of the spoliator that the litigation is pending or probable, willful destruction of evidence, intent of the spoliator to interfere with the victim’s prospective civil suit, a causal relationship between the evidence and the inability to prove the lawsuit, and damages. 213 W.Va. at 716, 584 S.E.2d at 575. While expressly recognizing that the existing remedies of adverse inferences and jury instructions were insufficient to combat intentional spoliation, the Supreme Court of Appeals of West Virginia recognized the “need to condemn a party who takes advantage of the adversarial system by destroying evidence that is essential . . . courts must deter parties from destroying evidence that may weaken their cases.” 213 W.Va. at 716, 584 S.E.2d at 575.
Several other jurisdictions have taken appropriate steps to deter and punish intentional spoliation. See Burge v. St. Tammany Parish, 336 F.3d 363 (5th Cir. 2003) (Louisiana); Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C. 1998) (District of Columbia); Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 234; 905 A.2d 1165, 1173 (2006) (Connecticut) (recognition of tort necessary to “compensate the victims of spoliation and to deter future spoliation”); Estate of Madeleine Willson v. Addison, 361 Mont. 269; 258 P.3d 410 (2011) (Montana—applies “only to non-parties to the litigation”); J.S. Sweet Co., Inc. v. Sika Chemical Corp., 400 F.3d 1028 (7th Cir. 2005) (Indiana—applies only where the alleged spoliator owed the movant a duty to preserve the evidence subject to the spoliation claim). In the vast majority of these jurisdictions, there has been an explicit recognition that the remedies usually applied in intentional spoliation cases (in other words, adverse inferences and jury instructions) are simply inadequate and insufficient to deter and punish the specter of intentional spoliation.
The purpose of our legal system should not be focused on ways to lessen dockets or further the ease of administrative inconveniences. While those engaged in the practice of law are undoubtedly too experienced (or cynical) to ascribe to the old adage that justice should be done though the heavens fall, every jurisdiction should seek to punish intentional and malicious conduct directly, especially where such conduct is purposefully aimed toward circumventing the search for truth. While the recognition of intentional spoliation not only creates a cause of action that can be relied on to both deter and punish such improper conduct, the symbolic effects may prove to be even more invaluable. Such recognition confirms that our legal system will take any and all steps necessary to maintain the sanctity of the search for justice and that courts will not turn a blind eye to intentional and malicious acts that interfere with that search or apply a Band-Aid to the problem with a jury instruction or related adverse inference. Laws are meant to establish a minimum level of decency by which all citizens must abide. When our courts fail to recognize, or even consider, the deterrence and punishment of intentional spoliation, our courts fail to uphold the level of decency that the legal system should serve to establish and maintain.
Keywords: litigation, business torts, spoliation, evidence, cause of action