South Carolina Lawyer
SC Lawyer, September 2007, #5.
Spoliation in South Carolina
South Carolina LawyerSeptember 2007Spoliation in South CarolinaSpoliation is the destruction of evidence that one might otherwise have expected to have been relevant to a case. Although not technically the same, the doctrine is similar to one that presumes that an expected, available witness who is not called to testify would have said something unfavorable. See Ex parte Hernlen, 153 S.E. 133, 134 (S.C. 1930). However, unlike that theory, which requires that the witness be available, spoliation involves evidence that is specifically not available to either party. The presumption does not arise from the failure to present the evidence, but from the role that the party had in preventing it from being reviewed by the jury or court.
Spoliation in state court
The courts of South Carolina have long recognized that a party is entitled to favorable presumptions about the contents of missing evidence when an opponent is responsible for the destruction of evidence that might otherwise be expected to have been relevant. In a pair of very early cases, the S.C. Court of Appeals hit upon the policy for the rule: presumptive prejudice to the other party. While spoliation cases in South Carolina have been few and far between, the reasoning of the early cases remains true today.
First, in Halyburton v. Kershaw, 1810 WL 298 (S.C. Ct. App. 1810), a carpenter contracted to build a house for £800 for Mr. William White who paid a £500 advance. Before the house was built, Mr. White died. The plaintiff was to inherit Mr. White's land while another relative was to receive the balance of the estate. The decedent's administrators improperly canceled the construction contract and received a refund of the £500 advance. The plaintiff sued, claiming that, had the administrators not canceled the contract, he would have had a house worth £800 on his inherited property; because the contract was canceled, the value of the contract (i.e., the refunded £500) would pass to the other beneficiary.
The administrators admitted in their answer that a contract had once existed but asserted that they had canceled it and destroyed the actual paperwork. They argued that their admission about the one-time existence of the contract was inadmissible against the estate. But, even if the admission of a contract's existence could bind the estate, the administrators claimed that there was no longer a source of sufficiently detailed information about the terms to enforce it.
On appeal, the court sided with the plaintiff. First, the court observed that the admission by the administrators could, indeed, be held against the estate and that their admission itself provided enough details to enforce the contract. The court further noted that the plaintiff would have been entitled to a presumption regarding the agreement if further details had been necessary: "For the administrators having under a mistaken idea cancelled and destroyed the evidence of the contract of which the complainant claims the benefit, and to the use of which he would have been entitled, in order to support his claim . . . would be stript [sic] by this objection of the only means of establishing the facts, upon which his claim rests; without any default on his part, and by the act of the defendants. This would be too mischievous in its effects to be allowed to prevail." Id. at *4. Even though the administrators had not acted maliciously, "[t]he Court will go very far in presuming against those who destroy papers and instruments necessary to the security or elucidation of the rights of others, in odium spoliatoris, as it is expressed. I do not apply that phrase to these defendants: they are good men, who acted unadvisedly, and not wilfully wrong; but the effects of that error are the same to the complainant. And he would be entitled to the benefit of all the presumptions which could reasonably be raised out of the circumstances for his benefit." Id. (emphasis added).
In other words, even absent any purposeful misbehavior, the court would have been willing to justify a negative presumption. The absence of the evidence meant that the other party was hamstrung in the proof of his own case. The intent to hide favorable information is not a necessary element for the presumption.
A short time later, another case, Executors of Blake v. Lowe, 1811 WL 319 (S.C. Ct. App. 1811), involved a spoliator with less pure motives but established some limits of the reach of the presumption. In Blake, the decedent bought the contents of a jewelry store owned by his friend, the defendant, at a sheriff's sale at far below their real value. The decedent apparently wanted to rectify his windfall later; he made a gift, to take effect upon his death, back to the defendant of the assets which he had bought at such a low price at the sheriff's sale. When the decedent died, the defendant acted upon the gift and seized all of the contents of the store.
The executors of the estate sued, claiming that the defendant had taken not just those things which had been acquired below cost at the sheriff's sale, but much more - property that was not included in the gift and that should have gone to the estate for distribution. Moreover, the defendant had taken the books from the store and torn out pages, making an accurate computation of the difference between the value of the goods taken and the value of the gift difficult, if not impossible.
The Court of Appeals wrote: "[I]f there was any difficulty in discriminating, it arose solely from the unjustifiable and illegal act of [the defendant] in taking possession of the whole shop and all its contents; and in taking the books of the shop and in cutting out the leaves, and so...