Section 10.12 Spoliation or Destruction

• Library: Discovery 2015

If a litigation hold is not created or enforced, spoliation can occur. Spoliation is “the destruction or material alteration of evidence or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Secs., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010). “The evidentiary spoliation doctrine applies when there is intentional destruction of evidence, indicating fraud and a desire to suppress the truth.” Brown v. Hamid, 856 S.W.2d 51, 56–57 (Mo. banc 1993). Most cases under Missouri law have dealt with the destruction of physical evidence, but with the inclusion of electronically stored evidence in Rule 58, remedies available in Rule 61.01(d) apply. Although sanctions and dismissal are possible remedies, Missouri courts have continued to refuse a separate tort cause of action for intentional spoliation. Brown, 856 S.W.2d at 56; seeBaugher v. Gates Rubber Co., 863 S.W.2d 905 (Mo. App. E.D. 1993); see alsoFisher v. Bauer Corp., 239 S.W.3d 693 (Mo. App. E.D. 2007).

Because the doctrine of spoliation is a “harsh rule of evidence, prior to applying it in any given case it should be the burden of the party seeking its benefit to make a prima facie showing that the opponent destroyed the missing [evidence] under circumstances manifesting fraud, deceit or bad faith.” Moore v. General Motors Corp., 558 S.W.2d 720, 736 (Mo. App. E.D. 1977). “Mere negligence is not enough.” Brissette v. Milner Chevrolet Co., 479 S.W.2d 176, 182 (Mo. App. E.D. 1972). But under certain circumstances, the spoliator’s failure to satisfactorily explain the destruction of the evidence may give rise to an adverse inference against the spoliator. Brown, 856 S.W.2d at 57. In other circumstances, “it may be shown by the proponent that the alleged spoliator had a duty, or should have recognized a duty to preserve the evidence.” Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77–78 (Mo. App. W.D. 1995) (emphasis omitted).

Litigants have a duty to preserve electronically stored data under their care, custody, and control. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 523 (D. Md. 2010). In Schneider v. Guilliams, Inc., 976 S.W.2d 522, 527 (Mo. App. E.D. 1998), the court declined to impose sanctions on a nonparty that engaged in spoliation and commented that they could not find a case in Missouri in which it had been done. For further care, custody, and control analysis, refer to...