Black's Law Dictionary defines spoliation as the destruction or alteration of evidence.³ Some states have developed working definitions of spoliation through case law. For example, a California court decision defined spoliation as the "failure to preserve property for another's use in pending or future litigation".⁴ This definition has also been adopted by Minnesota,⁵ and is notable because it does not include any requirement of intent or bad faith on the part of the spoliator. Conversely, Missouri and Texas case law requires an intentional destruction of evidence to amount to spoliation.⁶

In either event, any particular state's definition of spoliation can be ambiguous and difficult to interpret while fashioning an investigation.

In order to deter spoliation, courts have fashioned sanctions to be imposed upon the spoliating party. These sanctions range from jury instructions which call for an inference that the spoliated evidence would have been damaging to the spoliating party,⁷ to completely barring any testimony by the spoliating party's experts,⁸ effectively resulting in an adverse finding against that party.

A court decision in Illinois considered the appropriateness of sanctions barring the testimony of a subrogation plaintiff insurer's expert, where the insurer allowed an automobile to be destroyed before the opposing party had an opportunity to examine it.⁹ In imposing the sanctions, the court held that the plaintiff, as an insurance company, "unquestionably knew the importance of the car to any products liability claims to allow potential defendants to prepare a defense". Even though the insurer saved suspect wires from the car, and photographed it, the court held that the insurer should have preserved the entire car to allow the opposing party to inspect it.

The starting point for any spoliation claim is determining whether a party has a duty to preserve evidence. This duty can be imposed by statute, such as civil procedure sanctions for failure to comply with discovery, civil and criminal statutes prohibiting destruction of evidence, and rules of professional conduct governing attorneys.¹⁰ It can also be imposed by pre-existing contract,¹¹ by an agreement between the parties after the loss to preserve the evidence,¹² by court (protective) order after the loss,¹³ and/or by voluntarily assuming the duty to preserve the evidence.¹⁴ A duty to preserve evidence may also arise where there exists a potential for litigation and the party knew or reasonably should have known of that potential.¹⁵ This means that if it is foreseeable that evidence could be needed for a trial or a claim, then parties have a duty to preserve the evidence.¹⁶

Courts in Alabama, Illinois and Massachusetts have held that a duty to preserve evidence attaches at the point that an expert first begins an investigation, if there is a potential for litigation.¹⁷

A duty to preserve evidence may also be inferred through recommended practice. For example, the NFPA 921 Committee has recommendations for preservation of evidence in connection with the fire scene for investigation. Another such example is the National Institute of Justice/Office of Science and Technology and the National Center for Forensic Science which have begun a joint initiative to create National Guidelines for collecting and preserving evidence. The purpose of the Guidelines is to establish a standardized approach to collecting and preserving evidence in the area of arson and other crime scenes. It is therefore important to be aware of recommended guidelines or practices which may be used to create at least an inference of a duty to preserve evidence.

Several state court decisions have held that spoliation occurred when "crucial" evidence was destroyed or altered.¹⁸ Examples of crucial evidence include a heater that exploded,¹⁹ a furnace that malfunctioned,²⁰ a car that caught on fire,²¹ or a crimping machine alleged to have caused an injury.²² In determining whether crucial evidence has been destroyed, an Alabama decision held that where a party saved a component part of a gas system, but failed to preserve the entire system, evidence was spoliated.²³ The reasoning under these holdings is that if a product is the focus of an investigation, the entire product is crucial evidence.

HOW MUST EVIDENCE BE PRESERVED?

In order to allow both parties equal opportunity for inspection, courts in Illinois and Massachusetts have required that an expert may not deliberately or negligently put himself in the position of being the only expert with first-hand knowledge of the evidence in dispute.²⁴

In a Massachusetts case, the plaintiff's expert was in possession of the seat belt at issue, and pursuant to his examination, performed destructive testing.²⁵ The defendant asserted that plaintiff's testing of the seat belt so altered it, that the defendant's expert was effectively precluded from making any useful examination. The court barred the plaintiff's expert testimony at trial, holding that to allow the expert to testify would allow the expert to substitute his own opinion or description in place of the actual evidence.²⁶

An Illinois court decision concluded that even though the insurer inadvertently misplaced component parts of the product at issue, the effect upon the defendant was to deny them any opportunity to establish alternative cause of the fire, and therefore it was proper to bar the insurer's expert testimony.²⁷

One Ohio court decision suggested that to avoid spoliation claims, parties should agree to mutual inspections with both parties present for any testing or manipulation of the evidence.²⁸ In California, the court suggested that the party holding the evidence should contact the opposing party and impose a deadline for inspection, beyond which the opposing party would have to bear the cost of preserving the evidence.²⁹

Certain court decisions find that although the duty to preserve crucial evidence is expansive, it is not unlimited. The California and Illinois courts have found limitations on liability for spoliation by stating that parties are required to act "reasonably" in preserving evidence.³⁰

In an Illinois decision, the court held that where there was no showing of bad faith by a party in discarding component parts of an allegedly defective propane cylinder, evidence was not spoliated.³¹ The court found that discarding the component parts was a reasonable action because at the time the parts were destroyed, all the experts in the case had agreed that the destroyed parts were not the cause of the fire. The court concluded that a party "cannot be held to take extraordinary measures to preserve items which were not relevant to either of the parties at the time they were destroyed."³²

Some courts have held that while a party does not have a duty to preserve evidence indefinitely, a party must hold it for a "reasonable" length of time.³³ A court decision in Idaho held that where a party afforded the plaintiff an opportunity to examine the evidence, and after one year the plaintiff had not examined the evidence, it was reasonable for the party to notify plaintiff that the evidence would be destroyed absent a timely response.³⁴

Certain states hold that unless the underlying cause of action is terminated, any action for spoliation is premature, because actual injury cannot be sufficiently alleged until the party has suffered an actual loss in order to assess damages.³⁵ Courts in Alaska, Florida, and Illinois have held that a party need not necessarily first pursue the underlying claim before bringing a spoliation action.³⁶ Those courts held that the cause of action for spoliation may be brought with the underlying suit in order to allow the jury to hear common issues on causation and damages concurrently. ³⁷ In a recent Illinois Supreme Court civil action, concurrent litigation of the spoliation claim was allowed, but the court specifically required that sufficient facts be alleged to show the loss or destruction of the evidence would create the inability to prove the underlying lawsuit.³⁸

Recently, the California Supreme Court overruled a much-cited 1984 appellate court decision, Smith v. Superior Court of California, in which the appellate court recognized an independent cause of action for intentional first-party spoliation of evidence.³⁹ The issue before the California Supreme Court was whether a party, who learns of spoliation during a lawsuit, may bring an independent cause of action for spoliation. The Court held that in such a situation, there is no need for an independent cause of action because the trial judge can impose sanctions, or give an adverse inference jury instruction to remedy the spoliation.

In Illinois, for example, while its Supreme Court confirmed a "negligence" standard for determining spoliation⁴⁰, the Illinois appellate decisions might be considered to be inconsistent, if not unclear in defining sanctionable conduct.

In weighing whether to impose discovery sanctions, the Illinois courts generally consider whether spoliation of evidence deprived an opportunity to determine alternative causes or defenses, resulting in substantial prejudice.⁴¹ Illinois courts seem to focus less on the conduct which caused the spoliation, and more on the effect the spoliation had on the case. The reasoning is that if a defendant is rendered unable to establish a defense or cause of action because of spoliation, it is immaterial whether the acts intentional or negligent.⁴²

Consider however, a recent Illinois Second District case, which predated the Illinois Supreme Court decision confirming the negligence standard for spoliation. The Appellate Court considered the spoliator's good faith and reversed a trial court's imposition of sanctions for spoliation.⁴³ The court considered the damage done to defendant's case as a result of not having access to the spoliated evidence, and additionally considered the intent of the party that spoliated the evidence. While finding there was no showing that the spoliator had not acted in good faith, the court further found no substantial harm to defendant's case, since experts for each party agreed that testing of acetylene torch hose was unnecessary.

A subsequent case from the Illinois First District (Second Division) explicitly rejected the idea that a court should consider the intent of the spoliating party, stating that the Second District "appears to have used the plaintiff's good faith as a gauge for measuring prejudice to the defendant."⁴⁴ The First District further held that in determining the appropriateness of discovery sanctions, a court should consider whether defendant's case was substantially harmed by not having access to the spoliated evidence. In this case, the defendants' experts had not yet tested or examined evidence involved in an explosion when plaintiff allowed that evidence to be destroyed. The warehouse storage facility inadvertently disposed of the artifacts. The court held that it was appropriate to dismiss plaintiff's case because defendant was denied any chance of developing a defense.

In another almost concurrent Illinois First District (First Division) decision, the court held that dismissal of the case was not appropriate, even though plaintiff had performed destructive testing on an auto steering column gear before defendant had a chance to examine it.⁴⁵ The court held that even though defendant was denied an opportunity to examine the steering gear in its post-accident condition, the court would not presume from the trial court record that the spoliation necessarily harmed defendant's case to an extent would warrant dismissal of the suit against it. Rather, the Appellate Court remanded back to the trial court for a hearing on this issue. On appeal, the Illinois Supreme Court recently affirmed the appellate court's conclusion that a potential litigant does nave a pre-suit duty to preserve relevant evidence, and additionally affirmed the Appellate Court's holding that an evidentiary hearing weighing the prejudice suffered by the non-spoliating party must be conducted before imposing sanction. The Court went on to delineate the six factors a trial court should use in determining what sanction, if any, should be applied in the case of spoliation. Those factors are: (1) the surprise the spoliation presents to the adverse party; (2) the prejudicial effect of the spoliator's proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party'' objections to the testimony or evidence; and, (6) the good faith of the party offering the testimony or evidence.⁴⁶

Contrast the above First District Appellate decision with a Fifth District Appellate decision issued about five months earlier, also in which auto steering column evidence was destroyed. The court here found spoliation to exist.⁴⁷ It should be noted that the court focused on the fact that the defendant spoliator had previously been served with a notice to preserve evidence by the plaintiff. There was no analysis as to whether there was a showing of prejudice to plaintiff's case. Rather, there was simply a deference to the trial judge in determining sanctions.

Caution should be used when navigating from jurisdiction to jurisdiction in defining sanctionable conduct, since trial and appellate courts can be unpredictable in their rulings. Being proactive and consistent in preserving evidence is recommended.

DOES FEDERAL OR STATE LAW APPLY?

The United States Court of Appeals, Third Circuit, suggested that while the federal courts have the inherent power to preclude evidence for spoliation, it is not clear whether the federal courts should apply state substantive law or federal evidentiary law when imposing sanctions for destruction of evidence in spoliation cases.⁴⁸

In a recent Seventh Circuit case out of Illinois, the court upheld the dismissal of the insurer's subrogation claim. In doing so, it held that state law governs issues that have a potential to alter the outcome of a case.⁴⁹ The court determined that under Illinois law, a party has a pre-suit duty to preserve evidence it reasonably should have known would be relevant to the opposing party in preparing a defense. In this case, the insurer failed to preserve all component parts after examining an allegedly defective grill. The court held that at the time the insurer destroyed the component parts, the cause of the grill malfunction had not been determined, and their actions effectively precluded the other party from discovering alternative causes of the malfunction.⁵⁰

In applying sanctions for spoliation, the Ninth Circuit required a showing that the evidence was spoliated in bad faith before the trier of fact may draw an adverse inference.⁵¹ The court seemed to apply federal rather than state law. In this case, after the plaintiff's expert disassembled a lighter at issue in a products liability claim, the defendant argued that the evidence was spoliated.⁵² The court held that while the plaintiff's expert had not been as careful as he should have been, absent a showing of bad faith by the expert, the spoliation claim was meritless, and therefore no adverse inference was warranted.⁵³

1. Retain legal counsel to evaluate the state (or applicable federal) law before losses occur, if possible. In any event, retain counsel immediately after notice of loss to assist in evaluating spoliation (and other) issues.

2. Determine the specific basis of any restriction on spoliation with respect to each loss as soon as possible. That is, search for any basis in pre-existing contract or statutory or case law that might be binding on the parties. Make sure your fire investigators are up to date on current recommended practices for fire investigation. Check court records after the loss for protective orders. Fully understand your rights/potential duties before entering into any agreement with other parties, or approving the language of a protective order. Make sure protective order or other agreement language is as unambiguous as possible and understood by all of the parties and their entire investigative teams. (Especially yours!)

3. Preserve and carefully document chain of custody of evidence with photographs, videotapes, affidavits and/or written agreements. Ensure that storage of the evidence is not subject to potentially spoliating influences. Identify and specify persons with keys to storage facilities and evaluate the facility in terms of security.

4. Work out written agreements with all potentially interested parties (to any extent possible) concerning inspection and/or destruction of evidence. Try to do this immediately after notice of loss, but in any event before debris removal if at all possible. Develop and agree to a written protocol for any "destructive testing" of the evidence, including a definition of destruction testing. Strive to make the definition and protocol as unambiguous as possible.

5. Give all potentially interested parties to the loss reasonable written notice (consider by certified mail) of destructive testing, or any other significant action with respect to the evidence. Give reasonable time to respond.

6. If your state allows for destruction of the evidence after some "reasonable time," try to do so by agreement, and in any event, give reasonable written notice to all potentially interested parties beforehand.

Endnotes