The Land of Oz: Spoliation of Evidence in Louisiana

• Author: Danielle Borel
• Position: J.D./D.C.L., 2014, Paul M. Hebert Law Center, Louisiana State University
• Pages: 507-545

The Land of Oz: Spoliation of Evidence in Louisiana

INTRODUCTION

Take a trip down the yellow brick road. The Wizard decided to

sell a new energy drink, Courage. The Cowardly Lion, in need of

courage, bought and consumed the beverage. Shortly thereafter he

became ill and incurred medical expenses from a week’s stay in the

hospital. The Lion’s attorney quickly notified the Wizard of the

Lion’s intention to file suit against the Wizard, alleging that the Lion

consumed Courage from a bad batch. Upon hearing of the potential

litigation, the Wizard destroyed all of the samples from that

particular batch. Without any “bad” Courage to test, the Lion was

unable to prove the drink made him sick and could not recover

damages.

The Wizard’s actions are commonly known as “spoliation of

evidence.” Spoliation of evidence occurs when a party destroys,

conceals, or alters evidence in order to disadvantage another party.1

The Wizard’s malicious intent qualifies his actions as intentional

spoliation of evidence. In this situation, the Lion has a claim for

intentional spoliation of evidence, which is most likely recognized

by the courts of Oz.2

If the above scenario is altered slightly, the result varies greatly.

Now, imagine that the Lion could not recover the allegedly “bad”

batch of Courage, yet he could not prove that the Wizard

intentionally destroyed it. Further, Oz Code article 1939 demands

that manufacturers of beverages retain one finished product from

each batch for at least four years after its creation. This situation

should be actionable under a version of negligent spoliation that

roots the duty to preserve the evidence in the statute. In many

jurisdictions, however, despite the law creating a duty mandating

that the Wizard keep such evidence, the Lion would be without a

remedy.3

Finally, consider a slightly different scenario: On hearing of the

Lion’s sickness, the Wizard separated the bad batch from the rest

and stored it in a closet. Then, at the time of trial, the Wizard learned

that one of his employees mistakenly threw away the bad batch. In

this situation, though it seems that the Lion should be entitled to

Copyright 2014, by DANIELLE “DANI” BOREL.

1. Rachel A. Campbell, Effect of Spoliation of Evidence in Tort Actions

Other than Product Liability Actions, 121 A.L.R. 5th 157, 157 (2004); Randolph

v. General Motors Corp., 646 So. 2d 1019, 1027 (La. Ct. App. 1st 1994).

2. See infra Part I.B.

3. See infra Part I.B.

508 LOUISIANA LAW REVIEW [Vol. 74

some recovery, this form of negligent spoliation of evidence is also

not recognized by many jurisdictions.4

The Lion’s predicament is the same as the dilemma facing

Louisiana’s doctrine of spoliation. As noted in Lewis v. Albertson’s

Inc., “[t]he Louisiana Supreme Court has yet to address the potential

tort right of spoliation stemming from negligence principles,

including its requirements and the remedy for this cause of action;

the issue is certainly ripe for consideration.”5 In Louisiana, negligent

spoliation is controversial and disputed.6 For instance, in Arnold v.

Brookshire Grocery Co., the Louisiana Third Circuit Court of

Appeals enumerated the elements of spoliation as follows: “(1) the

intentional or negligent destruction of evidence and (2) that the first

element was for the purpose of depriving the plaintiff of its use.”7 In

theory, the Arnold court found that a party may negligently deprive

a party of evidence for a purpose. In reality, however, to do

something negligently with a purpose is impossible.8 This logical

fallacy illustrates the lack of clarity in Louisiana law and, in

particular, the difficulties of determining the elements of negligent

or intentional spoliation of evidence. As neither the Louisiana

Supreme Court nor the Louisiana Legislature has addressed this

issue, the Louisiana courts, lawyers, and potential litigants direly

need a coherent doctrine for consistent guidance, adequate

preparation, and protection against injury, respectively.

This Comment proposes a treatment of spoliation that would

offer clarity to courts on the issue. Specifically, this Comment

contains two arguments. First, the Louisiana Supreme Court ought

to accept the current theory of intentional spoliation found in the

Louisiana appellate courts.9 Second, this Comment argues for the

4. See infra Part I.B.

5. Lewis v. Albertson’s Inc., 935 So. 2d 771, 774–75 (La. Ct. App. 2d

2006).

6. See infra Part II.C.

7. Arnold v. Brookshire Grocery Co., 10 So. 3d 1279, 1280 (La. Ct. App. 3d

2009).

8. State v. Vinzant, 7 So. 2d 917, 922 (La. 1942).

9. Union Pump Co. v. Centrifugal Tech., Inc., Civil Action No. 05-0287,

2009 WL 3015076, at *5 (W.D. La. Sept. 18, 2009) (“All five Louisiana Circuit

Courts of Appeal have recognized [intentional] spoliation as a valid tort claim.

Accordingly, it is this Court’s Erie guess that the Louisiana Supreme Court would

find spoliation of the evidence to be a valid tort claim.” (citations omitted));

Bertrand v. Fischer, No. 09-0076, 2011 WL 6254091, at *2–3 (W.D. La. Dec. 14,

2011) (“The Louisiana Supreme Court has not ruled on this issue, therefore federal

courts must make an Erie guess to determine as best as it can what that court

would decide. . . . [T]he Louisiana Supreme Court would only recognize

spoliation based o n intentional conduct.” (quoting Union Pump, 2009 WL

3015076, at *5)).

2014] COMMENT 509

Louisiana Supreme Court and Louisiana Legislature to recognize

negligent spoliation. Negligent spoliation is the more controversial

form of spoliation and the focus of this Comment. The Comment

begins by looking at the origin of the tort of spoliation before

analyzing the tort under Louisiana’s legal precepts. Part I examines

the doctrines of other states, starting with the origin of spoliation

generally in California and then discussing some states that have

recognized negligent spoliation. Part II discusses Louisiana’s

various approaches to spoliation. The Louisiana circuit courts vary

on the elements of: (1) the knowledge of a potential suit, (2) the

failure to produce needed evidence without explanation, and (3) the

level of culpability required.10 Because the most controversial issue

is whether negligent spoliation is actionable, this Comment also

examines in depth the evolution of three lines of reasoning regarding

spoliation. Part III argues that Louisiana should recognize a cause of

action for negligent spoliation. Such recognition would conform to

existing Louisiana law and jurisprudence and is necessary to uphold

the principles of judicial integrity, fairness, and truth.11

I. THE APPEARANCE OF THE RUBY SLIPPERS: BACKGROUND

A. Munchkinland: Spoliation’s Infancy

Analyzing the inception of spoliation and the reasons for its

creation validates the need to recognize negligent spoliation in

Louisiana. The first court to recognize the tort of spoliation,

specifically intentional spoliation, was a California appellate court in

Smith v. Superior Court.12 In Smith, the defendant’s wheel flew off

of his van and into the windshield of the plaintiff’s vehicle, causing

injury to the plaintiff.13 Abbot Ford, the automobile dealer that

customized the van before the defendant bought it, promised the

plaintiff’s counsel that he would keep the relevant van parts that

would be needed as physical evidence.14 Subsequently, the

dealership “destroyed, lost or transferred” the requested parts,

effectively eliminating the chance of success for any possible defect

claim.15 The plaintiffs then amended their petition to include a claim

for “Tortious Interference with Prospective Civil Actions By

10. See infra Part II.A–C.

11. See infra Part III.C.

12. 198 Cal. Rptr. 829 (Cal. Ct. App. 1984); 18 Am. Jur. 3d Proof of Facts

515 (2013).

13. Smith, 198 Cal. Rptr. at 831.

14. Id.

15. Id.