Spoliation of Evidence

Spoliation of evidence occurs when the available evidence is withheld, hidden or destroyed. Intentional spoliation of evidence is not an independent action available to a given party. The remedy available is usually sanctions imposed for misuse of discovery or an instruction allowing the jury to draw an inference unfavorable to the party.

Tort liability is not available for spoliation of evidence due to policy considerations. The aim is to deter a separate claim from the underlying action, which may result in inconsistency of results. Furthermore, negligent spoliation may also be sufficient for sanctions. An example of spoliation is when a product is destroyed in a product liability claim.

When the possible spoliator is a nonparty the guidelines are the same. Other remedies are often available for non-party spoliation. For example, monetary and contempt sanctions may be available for the destruction or suppression of available evidence. If the nonparty is an attorney and willfully destructed the evidence, criminal prosecution may be appropriate. In addition, a party can seek a breach of contract action against a nonparty who had a contract to preserve the evidence.

In order to preserve the available evidence, the party may want to obtain a temporary restraining order. A sanction may not be a sufficient remedy to a plaintiff if crucial evidence is destroyed. Therefore, a party may attempt a temporary restraining order to maintain the security of the item until discovery becomes appropriate. The court may also grant an injunction compelling preservation of the evidence. Once discovery begins, a party may demand a party controlling the evidence to produce it for inspection [CCP§2031]. If the party fails to comply with the court order, severe sanctions may apply.

Employment liability for spoliation may also arise in a potential claim. Tort liability is no longer available, however claims differ in regards to employers. For example, in a workers compensation claim there is no spoliation claim. On the other hand, an employer may be liable if the claim involved injury to the property or economic interest. Since this is outside of the workers compensation plan, liability may be imposed.

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