The Land of Oz: Spoliation of Evidence in Louisiana
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
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
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
6. See infra Part II.C.
7. Arnold v. Brookshire Grocery Co., 10 So. 3d 1279, 1280 (La. Ct. App. 3d
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
13. Smith, 198 Cal. Rptr. at 831.