4 Independent Causes of Action for Spoliation

• Library: Spoliation of Evidence: Sanctions & Remedies for Destruction of Evidence in Civil Litigation (ABA) (2013 Ed.)

"New and nameless torts are being recognized constantly . . ."¹

Courts in virtually every jurisdiction may impose sanctions for spoliation that occurs during pending litigation. Yet, only a minority of state high courts have embraced an independent tort claim for spoliation of evidence.²

Seven states and the federal district court in the District of Columbia have recognized a cause of action for spoliation of evidence.³ Other states have held that existing tort remedies are sufficient to remedy spoliation.⁴ Those states that have recognized a spoliation tort may limit the tort to intentional causes of action or to a cause of action against a third party.⁵

The highest courts in Alaska,⁶ Connecticut,⁷ New Mexico,⁸ Ohio,⁹ and West Virginia¹⁰ have recognized a cause of action for intentional spoliation. The highest courts in three states,¹¹ Montana,¹² Alabama,¹³ and West Virginia,¹⁴ have recognized a cause of action for negligent spoliation. The District of Columbia has recognized negligent or reckless spoliation.¹⁵

Courts in Illinois,¹⁶ Idaho,¹⁷ Louisiana,¹⁸ and New Jersey¹⁹ have not recognized an independent spoliation tort. Instead, these courts have found that a cause of action for negligent spoliation can be stated under general negligence principles and similar existing causes of action.²⁰

But a majority of the state high courts considering the issue have concluded existing case law and available civil sanctions provide an adequate remedy for spoliation.²¹ These courts articulate a variety of reasons for refusing to do so, including that this new tort is unnecessary because existing remedies adequately can address the spoliation problem.²²

CALIFORNIA RECOGNIZES SPOLIATION AS ATORT

The first decision to expressly recognize the tort of spoliation was the 1984 California case of Smith v. Superior Court.²³ In that case, the plaintiff suffered permanent injuries following an accident in which an oncoming truck's wheel crashed into her windshield. After the accident, the truck was taken to the dealership that had customized the wheels on the truck. Plaintiff's attorney notified the dealership of the truck's evidentiary importance and explained it would be subject to testing by experts. Subsequently, the dealership disposed of the truck with knowledge and understanding of its importance.²⁴

The court began its analysis by explaining how new torts evolve:

New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none had been recognized before. . . . When it becomes clear that the plaintiff's interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not itself operate as a bar to a remedy.²⁵

The Smith court observed that "a large part of what is most valuable in modern life depends upon 'probable expectancies;' [and] as social and industrial life become more complex the courts must do more to discover, define and protect [expectancies] from undue interference."²⁶ The court explained that "the primary function of the tort of intentional spoliation is to compensate for the destruction of evidence even though the probative value of the evidence is not known, because the accuracy of the facts related to the evidence will never be restored."²⁷

In delineating the boundaries of this new tort, the Smith court further likened it to the tort of interference with prospective business advantage. The court concluded "that a prospective civil action in a product liability case is a valuable 'probable expectancy' that the court must protect from the kind of interference alleged herein."²⁸

The underlying premise for recognition of this new tort is that a victim of spoliation is entitled to recover compensatory, and possibly punitive, damages for the loss of a prospective lawsuit.²⁹ The ineffectiveness of judicial sanctions in deterring spoliation prompted, in part, the recognition of this tort.³⁰ Courts also point to the integrity of the judicial system³¹ and deterrence as important policy goals supporting recognition of the tort.³²

"The spoliation tort protects a litigant's interest in bringing a prospective cause of action" by "compensat[ing] the non-spoliating liti gant for uninvited interference with the prospective lawsuit resulting from destroyed evidence."³³ Courts recognizing a cause of action for intentional spoliation generally emphasize the inadequacy of traditional remedies to compensate the non-spoliating party.³⁴

DEVELOPMENT OF THE SPOLIATION TORT AFTER SMITH v. SUPERIOR COURT

Since the Smith decision in California in 1984, courts in numerous jurisdictions have considered and adopted or rejected this new tort. Most courts rejected the new tort or found it unnecessary to resolve the issue on the facts before it.³⁵ Perhaps the chief concerns courts articulate are the uncertainty of damages given the difficulty in establishing with certainty what the missing evidence would have shown and the "inherent difficulty of proving the fact of injury."³⁶ Even the Smith court, which first recognized the tort, noted that the uncertainty of damages due to destroyed or altered evidence was the "most troubling aspect" of the new tort.³⁷

Then, in a pair of significant decisions, the Supreme Court of California overturned the longstanding position of its lower courts and held California does not recognize the tort of intentional spoliation either by a party to litigation³⁸ or by a third party.³⁹ In effect, these two decisions reversed more than a decade of spoliation law in California. The reasoning of the court in these decisions remains instructive.

In Cedars-Sinai Medical Center v. The Superior Court of Los Angeles County,⁴⁰ the court rejected a tort remedy for first-party spoliation because it found other adequate remedies existed to both compensate victims of spoliation and deter acts of spoliation. Further, the court found recognition of the tort would not promote the important principle of finality in litigation and would impose significant burdens on parties and the judicial system.⁴¹

Extending its decision to third-party claims for spoliation in Temple Community Hospital v. The Superior Court of Los Angeles County,⁴² the Supreme Court of California again voiced its concern that to recognize such a tort would inundate the judicial system with claims.⁴³ The Temple Community Hospital court recognized that, although "occasional miscarriages of justice" might result from the unavailability of this tort remedy, but considered the absence of finality in litigation an even worse result.⁴⁴

After Cedars-Sinai Medical Center and Temple Community Hospital, a number of jurisdictions declined to recognize an independent tort claim for spoliation of evidence. For example, in Trevino v. Ortega,⁴⁵ the Supreme Court of Texas refused to recognize this type of claim citing concerns similar to those raised by the California high court:

While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially averse to creating a tort that would only lead to duplicative litigation, encouraging inefficient re-litigation of issues, better handled within the context of the core cause of action. We thus decline to recognize evidence spoliation as an independent tort.⁴⁶

The Trevino court analogized its refusal to recognize this claim to the refusal by other courts to create separate causes of action for civil perjury and civil embracery.⁴⁷

Based on the reasoning in Cedars-Sinai Medical Center and Temple Community Hospital, several other state supreme courts rejected calls to recognize a spoliation tort.⁴⁸ These and similar decisions⁴⁹ appear to have signaled a trend away from adopting spoliation of evidence as a separate tort.⁵⁰ It appears that, although spoliation can be a significant problem in litigation, the increasing willingness of courts to remedy spoliation through the use of sanctions during pending litigation may moderate against the perceived need for separate tort remedies.⁵¹

Courts rejecting the spoliation tort have tended to focus on the speculative nature of damages. For instance, in Federated Mutual Insurance Company v. Litchfield Precision Components, Inc.,⁵²the Minnesota Supreme Court examined the issue of whether the uncertainty of damages precluded recognition of the tort. The court noted that "mere negligence 'in the air' is not a tort and does not become actionable until the force of the wrongful conduct impinges on a person."⁵³ The court further explained:

Speculation is a prime concern in the context of a spoliation claim because: it is impossible to know what the destroyed evidence would have shown. It would seem to be pure guesswork, even presuming that the evidence went against the spoliator, to calculate what it would have contributed to the plaintiff's success on the merits of the underlying lawsuit. Given
the plaintiff has lost the lawsuit without the spoliated evidence, it does not follow that he would have won it with the evidence.⁵⁴

Courts also have raised concerns about the scope of any new duty that would be created by the tort, voiced concerns about imposing additional duties upon litigants as a result of this new tort,⁵⁵ and pointed to issues that could arise from intruding on the property rights of individuals who lawfully dispose of their property.⁵⁶ Another concern of courts is that recognition of a new tort could lead to the generation of endless litigation.⁵⁷ As one commentator noted:

Much of this concern stems from what courts refer to as "derivative tort" actions, or those premised on the idea that the conclusion of one lawsuit [permits the filing of another]. Derivative tort actions are perceived as a threat to the finality of judgments, and the limited resources of the court system

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