When evidence has been destroyed, or sometimes just lost, some jurisdictions recognize a tort action against the person responsible for spoliation based on the unavailability of the evidence. Some jurisdictions do not recognize a cause of action for spoliation, but still permit jury instructions to permit an inference that the evidence was unfavorable to the party allegedly responsible for the loss or destruction. It often arises in defective product cases, but the research below was used in opposing an instruction where the plaintiff argued that merely because a document plaintiff’s counsel thought existed could not be produced, that its absence entitled the jury to conclude that the document had been destroyed by defendants to conceal some aspect of their activities.
This material arose with respect to a trial in which plaintiffs persuaded the court to give two spoliation instructions – one on failure of an unidentified defendant to produce certain unspecified evidence and another on destruction by an unidentified defendant of unspecified evidence – permitting the jury to presume that such unspecified evidence was unfavorable to defendants. It was improper to give either instruction and especially prejudicial to give both. Because plaintiff’s counsel was told that a policy provision of defendant’s he invoked was inapplicable, he speculated that there must be an applicable one he did not receive, although there was no evidence of that. Because someone assigned a booking number in anticipation of filling out a form which never occurred, plaintiff speculated that a document was withheld or destroyed, despite a lack of evidence that it ever existed. These instructions should not have been given.
The spoliation doctrine, where applicable, permits an inference that missing evidence was adverse to a party’s position. There must be a showing of intentional (or culpable) destruction of evidence. J. Strong, McCormick on Evidence § 265 at 180 (5th ed. 2003). The doctrine only applies to the party responsible for the loss or destruction of the evidence. Id. “Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain the inference of consciousness of a weak case.” Id. A spoliation instruction sends a powerful message that a party believes its case so weak that it lost or destroyed evidence. Such an instruction should not be given based on conjecture that such evidence ever existed or without proof of prejudice to the other party from the absence of the evidence.
“A federal court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). The Glover court held that a proper instruction must conform with Unigard Security Insurance Co. v. Lakewood Engineering & Manufacturing Corp., 982 F.2d 363, 371 (9th Cir. 1992), which recognized that such a situation exists only when a party with a duty to the plaintiff has spoliated evidence which damaged the plaintiff’s ability to bring the claim (finding spoliation inapplicable where the destroyed evidence damaged the defendant’s ability to prove a claim, but not plaintiff). Thus, the lost or destroyed evidence must be relevant to plaintiff’s claim and damage the ability to pursue that claim. “To draw an adverse inference from the absence, loss or destruction of evidence, it would have to appear that the evidence would have been relevant to an issue at trial and otherwise would naturally have been introduced into evidence.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995).
In addition to relevance, to justify a spoliation instruction, there must be proof that the defendant has some culpability in the loss or destruction of this relevant evidence. “A party should only be penalized for destroying documents if it was wrong to do so, and that requires at a minimum, some notice that the documents are potentially relevant.” Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991). “[W]hen a proponent’s intentional conduct contributes to the loss or destruction of evidence, the trial court has discretion to pursue a wide range of responses both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995). “An adverse inference about a party’s consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence; the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.” Id.
Assuming a party can show that relevant evidence existed, but is now lost or destroyed, that act must be connected to a particular party. J. Strong, McCormick on Evidence § 265 at 180 (5th ed. 2003). Assuming that has been proved, then the court may decide whether an instruction or other sanction is appropriate based on degree of culpability and degree of actual prejudice. Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3d Cir 1994); Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993); Vasquez-Corales v. Sea Land Service, Inc., 172 F.R.D. 10, 14 (D.P.R. 1997). Absent a party proving that relevant evidence existed and another party can be connected to its loss or destruction, there is no basis to consider spoliation at all. Even when such loss of relevant evidence is shown, mere negligence or innocent loss or destruction of evidence does not warrant a sanction, nor does a loss which is not prejudicial because of other evidence available. See Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993); Coates v. Johnson & Johnson, 756 F.2d 524, 550-51 (7th Cir. 1985).
Destruction of potentially relevant evidence may be innocent. Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 250, 955 P.2d 3, 6 (Ct. App. 1997). It is subject to the discretion of the trial court whether to impose any sanction for spoliation; the doctrine is not automatically invoked merely by the loss or destruction of some evidence. There must be a showing of intentional or culpable loss or destruction. J. Strong, McCormick on Evidence § 265 at 180 (5th ed. 2003). “Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain the inference of consciousness of a weak case.” Id.
“For the loss or destruction of evidence to constitute an admission, the circumstances must indicate that the evidence was lost or destroyed because the party responsible for such loss or destruction did not want the evidence available for use by an adverse party in pending or reasonably foreseeable litigation. The merely negligent loss of evidence will not support that inference, nor would the intentional destruction of an item that a party had no reason to believe had any evidentiary significance at the time it was destroyed.”
Courtney v. Big O Tires, Inc., 139 Idaho 821, 824, 87 P.3d 930, 933 (2003). “Culpability turns on whether the party acted in bad faith or whether there is an innocent explanation for the destruction.” Marshall v. Bally’s Pacwest, Inc., 94 Wash. App. 372, 382, 972 P.2d 475, 400 (1999). See also Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)(“mere negligence . . . does not support an inference of consciousness of a weak case”); Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)(“a party’s failure to produce evidence may, of course, be explained satisfactorily”); Beil v. Lakewood Engineering & Manufacturing Co., 15 F.3d 546, 553 (6th Cir. 1994)(“some courts assign no adverse evidentiary consequences to destruction of evidence that is unintentional or satisfactorily explained”); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985)(“considering the circumstances surrounding the destruction of the documents in this case, nothing gives rise to an inference of bad faith by defendants”); Martin v. Intex Recreational Corp., 858 F. Supp. 161, 163 (D. Kan. 1994)(“resulting penalties vary accordingly, and can range from no adverse evidentiary consequences for destruction of evidence that is unintentional or is satisfactorily explained”).
There are some cases turning up on spoliation in relationship to social media. For examples:
Painter v. Atwood, DDS, No. 12-1215 (D. Nev., Mar. 18, 2014), 2014 WL 1089694; Hawkins v. College of Charleston, No. 12-384 (D.S.C., Nov. 15, 2013), 2013 WL 6050324; Gatto v. United Airlines, Inc., No. 10-1090 (D.N.J., Mar. 25, 2013), 2013 WL 1285285; Katiroll Co. v. Kati Roll & Platters, Inc., No. 10-3620 (D.N.J., Aug. 3, 2011), 2011 WL 3583408; Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D.P.R. 2006); Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013). Also see In re Pfizer, Inc. Securities Litigation, 288 F.R.D. 297 (S.D.N.Y. 2013); Cotton v. Costco Wholesale Corp., No. 12-2731 (D. Kan. July 24, 2013).
Other, related updates:
McMurty v. Weatherford Hotal, Inc., 231 Ariz. 244, 293 P.3d 520 (Ct. App. 2013) (defendants avoided a spoliation claim in superior court for having allowed an automatic overwriting of hotel video surveillance, but court of appeals remanded for further consideration whether the destruction of evidence should be sanctioned in some way)
Lips v. Scottsdale Healthcare Corp., 224 Ariz. 266, 229 P.3d 1008 (2010). The Arizona Supreme Court rejected negligent third-party spoliation as a cause of action, but left open the possible recognition of intentional third-party spoliation.
CR-13-0388-PR STATE OF ARIZONA v ROBERT CHARLES GLISSENDORF The Willits instruction in Arizona criminal cases is very similar to spoliation in the civil context.