7 The Developing Law of Spoliation in State Civil Courts

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

This chapter surveys the law of independent tort claims for destruction of evidence and the available remedies and sanctions for spoliation in pending civil litigation throughout the United States. Most states sanction deliberate spoliation, and many courts impose sanctions for negligent or reckless destruction of relevant evidence.

In a minority of states, the highest court has recognized independent tort claims that an injured party may bring when another person or entity destroys evidence relevant to the injured party's civil claim. Some of these states recognize these claims against parties to pending litigation, while others recognize spoliation tort claims only against third-party spoliators.

The following summary highlights the current law in all 50 states and the District of Columbia. It is not intended to be an exhaustive statement of the law for each state and should not be relied upon as such.

ALABAMA

Independent Causes of Action for Destruction of Evidence

In 1995, the Alabama Supreme Court declined to recognize an independent cause of action for spoliation of evidence when the alleged spoliator is a defendant in the action.¹ The court has not reconsidered recognition of an independent tort in the years that have followed.

Although the court declined to recognize a new cause of action in Smith v. Atkinson,² it recognized a remedy for negligent spoliation of evidence if evidence is lost or destroyed by a third party. In Smith, the Supreme Court announced a three-part test for determining whether a third party could be held liable for negligent spoliation. The Smith court held that in addition to proving the traditional elements of a claim in negligence, a plaintiff seeking recovery from a third-party spoliator must also show that (1) the third-party spoliator "had actual knowledge of pending or potential litigation; (2) a duty was imposed upon the third-party spoliator through a voluntary undertaking, an agreement, or a specific request;" and (3) the "missing evidence was vital to the plaintiff's pending or potential action."³ Once established, this evidence creates a rebuttable presumption that "but for" defendant's action, plaintiff would have recovered in the underlying claim.⁴

Eight years later, in Killings v. Enterprise Leasing Company, Inc.,⁵ the court reiterated its decision in Smith that "general principals of negligence law afford an Alabama plaintiff a remedy when evidence crucial to its case is lost or destroyed through the acts of a third party."⁶ The Killings court also pointed out that a third party could avoid liability by refusing to take responsibility for evidence or notifying a plaintiff that it wished to rid itself of that duty, but it could not "unilaterally decide to shed itself of that assumed duty without even attempting to provide any notice" to plaintiff.⁷

Civil and Evidentiary Sanctions for Destruction of Evidence

Alabama recognizes a wide range of civil and evidentiary sanctions. For example, Alabama Rule of Civil Procedure 37 gives trial courts the power to impose discovery sanctions when a party to litigation destroys evidence. Among other things, the trial court may require the spoliating party to reimburse attorneys' fees and costs, strike a pleading, bar introduction of evidence or expert testimony, and/or dismiss the action or enter a default judgment. Alabama courts are prepared to impose the harshest sanctions, dismissal or default judgment, when those sanctions are deemed appropriate.⁸

Trial courts determine the severity of the sanction by balancing the culpability of the spoliator against the prejudice to the non-spoliating party.⁹ For instance, in Cincinnati Insurance Company v. Synergy Gas, Inc.,¹⁰ the Alabama Supreme Court affirmed a trial court's entry of summary judgment in favor of a gas company on a subrogated insurer's claim charging that an alleged malfunction of a gas system caused a fire. Considering whether the insurer's claim should be dismissed as a sanction for allowing destruction of the fire artifacts, the trial court looked at the importance of the destroyed evidence, the culpability of the offending party, fundamental fairness, and alternative sources of information from which causes of the blaze could be determined.¹¹

On appeal, the Alabama Supreme Court analyzed the standard of review applicable to a trial court's decision to impose sanctions, noting a trial court is the more "suitable arbiter" for determining a party's culpability for destruction of evidence.¹² Accordingly, the court held it will show "great deference" toward a trial court's choice of civil sanctions.¹³ The court then reaffirmed its decision in Iverson v. Xpert Tune, Inc.,¹⁴ and held a trial court's decision regarding sanctions will not be disturbed absent a gross abuse of discretion.

Although it applied the four-factor Cincinnati Insurance test, the Supreme Court did not expressly adopt it. In subsequent decisions,¹⁵ the court has applied a five-factor analysis because those factors "provide[d] a useful template for an orderly analysis of relevant considerations."¹⁶ The five factors the court used to determine whether sanctions were appropriate in these decisions were: 1) the importance of the evidence destroyed; 2) the culpability of the offending party; 3) fundamental fairness; 4) alternative sources of information; and 5) available alternative sanctions, e.g., an adverse inference, or restriction of claims.¹⁷

Alabama courts permit a fact finder to draw an adverse inference against a litigant who destroys relevant evidence.¹⁸ A party may introduce evidence of another party's purposeful or wrongful destruction of evidence that it knows supports the interests of the opposing party, even if the destruction occurred before litigation commenced. Further, spoliation of evidence or an attempt to suppress evidence favorable to an adverse party is a "sufficient foundation for an inference of [the spoliator's] guilt or negligence."¹⁹

A divided Alabama Supreme Court discussed when a trial court may give an adverse inference instruction, similar to the instruction contained in the Alabama Pattern Jury Instructions,²⁰ in Alabama Power Company v. Murray.²¹ There, the majority upheld the trial court's decision to give an adverse inference instruction, despite the dissenting justices' concern about the lack of evidence that the power company purposefully and wrongfully destroyed material evidence. In his dissenting opinion, Justice Lyons explained, a spoliation instruction is not precluded every time a spoliator asserts, "Oops, I dropped it."²² But the victim of the spoliation must do more than simply show the evidence was destroyed; it must introduce evidence that would be "sufficient for a jury to infer the commission of an intentional act."²³

Criminal Statutes

Alabama permits a court to impose criminal sanctions for tampering with evidence when the person destroying the evidence believes that a proceeding was pending or would be filed.²⁴ There are no reported cases of prosecution under this statute arising from destruction of evidence in a civil action.²⁵

ALASKA

Independent Causes of Action for Destruction of Evidence

The Alaska Supreme Court recognized the tort of intentional interference with a prospective civil action by spoliation of evidence in Hazen v. Municipality of Anchorage.²⁶ In Alaska "intentional spoliation claims can be made against parties to the original action, called 'first-party spoliators,' and non-parties to the original action, called 'third-party spoliators.'"²⁷ This tort is limited to cases where the claimant can show intentional interference with its civil action, a viable underlying cause of action, and evidence that the spoliator destroyed or concealed evidence "until it was naturally destroyed."²⁸

The litigation that led to recognition of the independent tort in Hazen arose out of a massage parlor owner's civil action for false arrest and malicious prosecution following her arrest for prostitution. Municipal police officers tape-recorded their encounter with the owner and produced the tape to her attorneys during the criminal proceedings. The massage parlor owner's attorneys listened to the arrest tape and claimed it was "very clear" and it demonstrated the owner's innocence. Prosecutors apparently recognized that the tape did not help their case, but argued it was not particularly clear.²⁹

At a tape-recorded hearing on a motion to dismiss the criminal charges, the owner asked that the arrest tape be preserved or that she be given a copy of it because she was contemplating a civil suit. The prosecutor agreed to preserve the tape. Immediately after that, the recorded record reflected a male voice at the prosecutor's table whispering, "Wait 'til you hear what is on the tape now."³⁰

Thereafter, the massage parlor owner filed a civil suit against the police officers, the prosecutor, and the city. During discovery, the owner requested and received the arrest tape. When they listened to the tape, the owner and her counsel found it inaudible and found it was not as clear as it had been at the dismissal hearing two years earlier. They then listened to the record of the criminal proceedings and heard the whispered remark for the first time. The massage parlor owner amended her complaint to assert a claim for violation of state and federal civil rights by destruction or alteration of evidence. Because no common law cause of action existed for the alleged alteration of the tape, the trial court fashioned an implied cause of action for deliberate violation of due process under the Alaska Constitution.³¹

Challenging, among other things, the trial court's directed verdict on her claim that the city, the prosecutor, and its officers altered the arrest tape, the owner argued there was sufficient evidence these defendants knew about the possibility of a civil suit and had access to the tape to allow the claim to go to the jury.³² The Supreme Court agreed, but only as to...