Should There Be a Separate Tort for Spoliation of Evidence?

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If you are presented with a case of spoliation, in addition to requesting remedies under the federal and state civil rules, and trying your luck with the tort of spoliation, you can consider an alternative: breach of contract. Assuming, of course, that you can prove that you or your client specifically demanded that the evidence be preserved and the other party agreed to do so, you need not need to rely solely on tort law or the civil rules for your remedy.


You learn that the other party in a lawsuit has destroyed or altered important evidence in an effort to gain an advantage or to prevent you from meeting your burden of proof. Does this give rise to a separate tort of spoliation of evidence? Or are your remedies limited to inferences to be drawn from the destruction or alteration of the evidence?

Cases supporting a separate tort

Nationally, there has been some recognition of a separate tort for spoliation of evidence, but this has been sporadic. Not surprisingly, this tort was first recognized in California. In Williams v. State of California, 192 Cal. Rptr. 233 (1983), a drum brake from a truck on a freeway broke apart, sending pieces through the windshield of another vehicle. In the civil suit that followed, the plaintiff was unable to access to the brake parts as evidence. She sued the California Highway Patrol for its negligence in failing to preserve evidence in the course of its investigation. The California Supreme Court allowed the Plaintiff the opportunity to show that, by stopping to assist a motorist, the officer had a special duty to preserve evidence.

This case was quickly followed by Smith v. Superior Court for the County of Los Angeles, a freeway accident involving a tire that fell off a customized van. The defendant van customizing shop lost or destroyed the physical evidence, making it impossible for the plaintiff’s experts to test the parts for failure. Plaintiff’s complaint included a count for intentional spoliation of evidence, which, for the first time, was upheld as a separate cause of action.198 Cal. Rptr. 829 (Cal. App. 2d Dist. 1984).

Other states soon followed California’s lead. In Bondu v. Gurvich, 473 So.2d 1307 (Fla. App. 3 Dist. 1984), a hospital patient’s death resulted in a medical malpractice suit against the anesthesiologist and hospital. The hospital could not produce the entire medical chart, including the critical anesthesiology records, preventing plaintiff’s expert from forming opinions. After defendants were awarded summary judgment, plaintiff sued the hospital for losing the records. The Florida Court of Appeals stated that her complaint for negligent loss of records was a valid cause of action. In Alaska, the Supreme Court recognized the common law tort of intentional spoliation of evidence in the 1986 case of Hazen v. Municipality of Anchorage, 718 P.2d 456 (1986). In Hazen, a massage parlor operator was charged with prostitution. During the criminal trial it became evident that the critical arrest tape had been altered by the police. The massage parlor operated demanded that the tape be preserved, and filed a civil suit against the city. When the city produced the tape for the civil trial, it was no longer audible. The Supreme Court allowed the plaintiff to include a count of intentional spoliation of evidence. Ohio has jumped on board as well, establishing a five-part burden of proof for spoliation cases.[1]

[1] The five-part test requires (1) pending or probable litigation involving plaintiff, (2) knowledge on the part of the defendant that litigation exists or is probable, (3) willful destruction of the evidence by defendant designed to disrupt the plaintiff’s case, (4) disruption of the plaintiff’s case, and (5) damages proximately caused by the defendant’s acts. Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 615 N.E.2d 1037 (1993).

Cases against a separate tort

Not all states have followed the Smith and Williams line of cases. In Pharr v. Cortese, in which a doctor altered three critical records in a malpractice case, the New York court found that there are adequate existing measures to ensure that physicians keep adequate records, and noted the difficulty in assessing damages from the spoliation. 559 N.Y.S.2d 780 (Sup. 1990). Courts in Arizona, Maryland, Illinois and Georgia have declined to apply a separate tort for spoliation of evidence. La Raia v. Sup. Ct. Maricopa County, 722 P.2d 286 (1986); Miller v. Montgomery County, 494 A.2d 761 (Md. App. 1985); Petrik v. Monarch Printing Corp., 150 Ill. App. 3d 248, 501 N.E.2d 1312 (1st Dist. 1986); Gardner v. Blakston, 365 S.E.2d 545 (Ga. Ct. App. 1988).

The tort of spoliation of evidence came full circle with the recent California decision of Cedars-Sinai Medical Center v. Superior Court, 74 Cal. Rptr. 2d 248 (Cal. 1998). A child injured at birth gave rise to a malpractice claim. When the hospital could not produce the fetal monitoring strips, the plaintiff amended the complaint to add a count of intentional spoliation of evidence. Appeals brought the case to the California Supreme Court, which ruled the separate tort invalid. The Court held that there can be no tort remedy for intentional spoliation of evidence by a party to the underlying action if the victim knew of the spoliation before the verdict came in. The Court’s reasoning, specifically rejecting Smith and Williams, is that there are adequate evidentiary, discovery, criminal and bar sanctions in place to deter and punish spoliation of evidence.

Attitude of the courts in Maine

Here in Maine, there is reason to believe that the Federal Court would rule similarly. Though it predated the California Smith and Williams decisions establishing the tort of spoliation, the First Circuit’s decision in Nation-Wide Check Corporation v. Forest Hills Distributors, Inc., 692 F.2d 214 (1st Cir. 1982) applied existing sanctions as the remedy. In Nation-Wide, knowing that an anticipated accounting would uncover evidence necessary to establish an important fact at trial, Forest Hill’s attorney allowed the records to be destroyed. This destruction prevented Nation-Wide from proving a link that was critical to its civil case. The First Circuit upheld the District Court’s decision to draw an inference that the destroyed documents would have proved the evidentiary link. The Court cited a long-established proposition:

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction of evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him.

692 F.2d at 217. Thus, while there was no request for recognition of a separate tort for spoliation, the First Circuit recognized the existence of alternative remedies for such conduct.

The Maine Rules of Civil Procedure provide remedies for egregious discovery violations in Rule 37. The sanctions available under Rule 37 would require that the victimized party first file a motion compelling production of the evidence, so that the failure to produce the evidence is in actually a failure to comply with a discovery order under M.R. Civ. P. 37(b). So postured, the sanctions can include treating the failure to comply as contempt of court, as well as establishing as true whatever fact(s) the moving party sought to prove through the spoliated evidence, M.R.Civ.P. 37(b)(2)A), preventing the spoliating party from contradicting certain evidence with proof of its own, M.R. Civ. P. 37(b)(2)(B), and dismissing all or part of the spoliating party’s case, M.R. CIV. P. 37(b)(2)(C). Of course, these sanctions would apply to parties in existing litigation, and leave unremedied the spoliation of evidence by third-parties.

Defending your case in Maine

If you are presented with a case of spoliation, in addition to requesting remedies under the federal and state civil rules, and trying your luck with the tort of spoliation, you can consider an alternative: breach of contract.

Assuming, of course, that you can prove that you or your client specifically demanded that the evidence be preserved and the other party agreed to do so, you need not need to rely solely on tort law or the civil rules for your remedy.

At least one court has acknowledged that failure to preserve evidence in the face of an agreement to do so could give rise to a breach of contract or detrimental reliance case.

Though the Federal District Court in the Western District of Louisiana that considered the issue found that there had been no such agreement in Edwards v. Louisville Ladder Co., 796 F. Supp. 966 (W.D. 1992), the implication is that if there had been proof of such an agreement, it could have been enforced as an alternative to a tort remedy.

At a minimum, if you have a case in which you might need access to documents or other evidence in the hands of a potential opponent or third party, the wise practice would be to create a paper trail of requests that the evidence be preserved in anticipation of potential litigation. Your chances of a favorable remedy in court are much greater if you can submit clear proof of your requests that evidence be preserved, and that the evidence disappeared or was destroyed in the face of your requests.

The integrity of our system of civil justice has been under unrelenting attack for some time. Fairly or not, the public relations campaign of those who wish to undermine access to civil justice has eroded public faith in the fairness of the courts to resolve civil disputes. As trial lawyers, we have an obligation to ensure a fair and just process so that we can, in good faith, defend our justice system against its critics. Intentional or knowing spoliation of evidence undermines faith in the system, and we ought to have means of preventing its occurrence.