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Evidence Spoliation: A Growing New Tort

During the mid-1980s, courts in three states (Alaska/California/Florida) began upholding the civil tort of spoliation of evidence, permitting the recovery of money damages from persons or companies who destroyed evidence relevant to a civil claim.

Juries were allowed to award damages for such claims, albeit normally small awards. But today, the awards can approach or exceed "seven figures" if the evidence destruction is viewed as outrageous and significantly prejudiced an injured party from pursuing his or her injury-recovery day in court. Experts tell me they are suddenly in fear of performing destructive testing on any product or machine at issue in litigation. For example, sanctions have been sought for destructive testing or loss of a dashboard component even though the defendant manufacturer later decided not to pursue any accident cause or defense related to the dashboard component.

What are some of the acts of spoliation leading up to recovery of damages under this new tort? Spoliation tort claims are increasingly held to be independent of and not barred by workers compensation statutes' exclusivity provisions because spoliation of evidence is not the kind of injury for which an employer is entitled to see compensation under the state workers compensation statutes.

Pattern Acts of Destruction Leading to a Tort Claim Against the Destroying Party

Some of the pattern acts of destruction that lead to tort claim against the destroying party include:

  • Disposal of electrical wiring.

  • Erasure of computer general ledger.

  • Destruction of documents related to costs, production, pricing and quotes.

  • Destruction of work orders.

  • Confiscation and loss of two bolts in machine accident over bolts that failed.

  • Destructive testing of accident equipment.

  • Scraping of the accident equipment.

In one Tennessee case: act of destruction that triggers sanctions may be that of a third party. Jackson v.Nissan Motor Corp., 121 F.R.D. 311 (M.D. Tenn. 1988). The plaintiff 's attorney in a product's liability action arising from an automobile accident failed to pay the storage fees for the accident vehicle. The storage company (third party) sold the auto to a wrecking company and it

was destroyed. Trial court imposed the sanction of dismissal for gross negligence in failure to preserve the physical evidence (the auto) for testing by the defendant's experts.

Burden of Proof of the Tort The required burden-of-proof elements of a spoliation tort claim are as follows:

1) Existence of a potential civil action.

2) A legal or contractual duty to preserve evidence which is relevant to the potential civil action.

3) Destruction of that evidence.

4) Significant impairment (or prejudice) to prove the lawsuit.

5) A casual relationship between the evidence destruction and the inability to prove the lawsuit.

6) Damages.

Accidental mix-ups of evidence or discovery documents are not enough to establish this new tort. Negligent destruction of documents that were neither necessary nor sufficient to prove the injury is similarly not legally sufficient. Thus, if destruction is unintentional and no harm ensues, courts may decline to impose any sanctions on the theory of  "no harm, no foul." However, whenever courts find a willful violation of a court discovery order where a party destroyed documents or materials ordered to be produced, then they also frequently order sanctions and/or allow a tort suit remedy.

Pre-complaint Destruction of Evidence

In one Minnesota case, Capellupo v. FMC Corp., 126 F.R.D. 545, the defendant employer, reportedly "systematically" embarked on the "knowing and intentional destruction of documents and evidence" relating to employment practices and employee discrimination complaints in anticipation of a class action employment discrimination suit by employees. The district court described the employer's conduct as outrageous and awarded the plaintiffs twice their fees and expenses resulting from the defendant's document destruction and took briefs on additional sanctions.

What should employers do when a serious amputation or injury accident occurs on a machine where a cause or contributory factor was a defective or worn out machine component? Save all potential evidence, at least beyond the length of your state's civil tort statute of limitations.

Notify your insurance carrier and all potential parties involved in an injury suit about any planned destructive testing or discarding or scrapping of the accident equipment. Obtain releases from any lawsuit parties or seek a court order giving notice and permission for any such testing or destruction. If the equipment is subsequently sold, notify the buyer of the pending civil case involving the equipment and keep clear documentation of the equipment sale or transfer. Treat the preservation of potential evidence as you would want it preserved if you needed it to prove your liability claim or defense. Be alert to this new tort and always run any such decisions and documents on accident equipment through your legal counsel for prior review.

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