The License to Spoliate Must Be Revoked: Why Missouri Should Recognize a Tort for Third-Party Spoliation
by Benjamin T. Clark1
Relevant evidence is critical to the search for the truth. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial.2
This quote effectively sums up the inherent evils associated with the destruction of pertinent evidence before trial. To combat these evils, Missouri law provides that a party who intentionally spoliates evidence is subject to an adverse evidentiary inference. This inference is generally effective in punishing a spoliator who is a party in the underlying action. Missouri law, however, is devoid of similar safeguards to prevent or deter the spoliation of evidence by third parties.3 The purpose of this article is to examine the compelling reasons in favor of a third-party spoliation tort, and to argue that Missouri should recognize an independent tort for the negligent or intentional spoliation of evidence by third parties.
This article is divided into three parts. Part I examines the definition of "spoliation" and the various remedies courts have employed to address the problem of spoliation. Part II examines the myriad of reasons in favor of Missouri recognizing an independent tort for the negligent and intentional spoliation of evidence by third parties. Finally, Part III discounts the rationales of jurisdictions refusing to recognize such a tort and explains why their analyses are misguided.
I. Spoliation of Evidence Defined and the Remedies Employed to Prevent and Deter the Destruction of Evidence
"Spoliation" is defined as the "intentional destruction, mutilation, alter-ation, or concealment of evidence. . . ."4 The destruction of evidence is highly detrimental to our judicial system. Indeed, spoliation wreaks havoc on lawsuits - if relevant evidence is unavailable, an injured plaintiff could be prevented from proving her injury or a defendant may be unable to set forth an adequate defense.5 In that situation, a just verdict may be unattainable. Judges have long recognized that the "destruction of evidence manifests a shocking disregard for orderly judicial procedures and offends traditional notions of fair play."6 As a result, courts have steadfastly maintained that a party who destroys evidence should not be allowed to benefit from their wrongdoing.
In this vein, many courts employ the maxim omnia praesumuntur contra spoliatorem. Translated, this maxim means that "all things are presumed against a spoliator,"7 and has been described as "the earliest and most enduring solution" for the spoliation of evidence.8 As a practical matter, it permits a fact-finder to infer that whatever the evidence contained was unfavorable to the party that destroyed it.9
For more than a century, Missouri has applied the spoliation inference.10 This inference, however, is not applied lightly. "Since 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.'"11 Under this standard, mere negligence is insufficient to trigger the adverse inference rule.12 In certain cases, however, the inference may be applied where the alleged spoliator had a duty, or should have recognized a duty, to preserve the evidence.13 Missouri courts believe that "the spoliation doctrine and the resulting adverse inference punishes the spoliators by holding them to admit that the destroyed evidence would have been unfavorable to their position."14
Other jurisdictions have employed a myriad of traditional remedies to combat the problem of spoliation, including burden shifting, exclusion of testimony, summary judgment, and directed verdicts.15 In addition, the viability of a cause of action for the intentional or negligent spoliation of evidence has sparked a major debate. A majority of courts have refused to recognize such a claim regardless of whether the alleged spoliation was caused by a party to the underlying claim16 or by a third party.17 These courts generally explain that traditional remedies are sufficient to address spoliation concerns.
For example, in Trevino v. Ortega,18 Genaro and Linda Ortega brought suit against the defendants for medical malpractice. The plaintiffs alleged that the defendants were negligent in providing treatment and care during Linda's birth.19 During the litigation process, the plaintiffs learned that medical records relating to Linda's birth had been destroyed.20 Alleging that this destruction materially interfered with their medical malpractice action, the plaintiffs brought an action for the intentional, reckless, or negligent spoliation of evidence.21
The Texas Supreme Court acknowledged that measures must be in place to address the spoliation of evidence, but refused to recognize an independent tort for the spoliation of evidence. Instead, the Trevino court believed that
[i]t is simpler, more practical, and more logical to rectify any improper conduct within the context of the lawsuit in which it is relevant. Indeed, evolving remedies, sanctions and procedures for evidence spoliation are available under Texas jurisprudence. Trial judges have broad discretion to take measures ranging from a jury instruction on the spoliation presumption to, in the most egregious case, death penalty sanctions.22
Several jurisdictions have offered a similar explanation in support of their refusal to recognize a spoliation tort.23
Conversely, courts and commentators have offered several reasons why recognizing an independent spoliation tort is beneficial, including: (1) the tort promotes the desire to preserve testimonial candor and the integrity of the judicial system;24 (2) the tort protects the probable expectation of a favorable judgment or defense in future litigation;25 and (3) the traditional evidentiary remedies and sanctions are not effective enough to deter spoliation.26
Missouri currently follows the majority of states and has not recognized negligent or intentional spoliation, whether caused by a party or third person, as a basis for tort liability.27 The Missouri case that most directly addresses this issue is Baugher v. Gates Rubber Co., Inc.28 Baugher is a critical case in that it may shed light on how future Missouri courts may analyze a request to recognize a spoliation tort. In Baugher, the plaintiff was allegedly injured at work when "a hydraulic hose [was] improperly crimped to a coupling by a defective power crimp manufactured by Gates."29 The plaintiff received workers' compensation from his employer's insurer.30 In turn, the insurer assumed possession of the hose and coupling at issue to determine the cause of the accident, and promised the attorney for the manufacturer that it would "preserve the evidence and produce it as necessary."31 After the insurer moved to another office location, however, it could not locate the hose and coupling.32 As a result, the manufacturer brought a cross-claim against the insurer, and alleged that it could not fully defend itself without the missing evidence.33 The court was, therefore, presented with the question of whether Missouri would recognize causes of action for intentional and negligent spoliation.34
The court first considered the issue of intentional spoliation, and noted that the tort for intentional spoliation, as initially developed under California law, was based primarily on that state's tort for "interference with prospective business advantage."35 A similar tort under Missouri law requires a plaintiff to prove the existence of a contract or valid business expectancy.36 In contrast, California law simply required the plaintiff to prove the "probability of future economic benefits."37 Thus, California's more stringent causation requirement would not create a basis for Missouri to recognize an interference with an opportunity to win a lawsuit where there was only a probability of success.38 In addition, the court noted that "[b]ecause no facts [were] alleged supporting the allegation that [the insurer] acted intentionally, this case presents no basis to recognize a tort of intentional spoliation in Missouri."39
The Baugher court also held that the facts did not support recognizing a tort for negligent spoliation. The court recognized that a claim for negligent spoliation would not arise until a concrete injury is suffered.40 In Baugher, however, whether the manufacturer would suffer any harm by the loss of the evidence was "wholly speculative at this point."41 In part, the manufacturer alleged that the loss of the evidence could prevent it of an opportunity to prevail.42 The manufacturer, however, did not bear the burden of proof in the underlying products liability action.43 If the plaintiff was unable to establish his case because the allegedly defective product was unavailable, the possibility of an adverse verdict against the manufacturer would be remote.44 Accordingly, the facts supported the "application of the established rule that a cause of action does not arise until an injury is suffered."45 Finally, the court concluded that "even if Missouri were to recognize an action for spoliation based on common law negligence, Missouri law requiring the fact of damage to be established would prohibit such a claim against a non-party to the underlying action where that action has not been resolved."46 As a practical matter, the facts of Baugher were not conducive to recognition of a tort for intentional or negligent spoliation.
II. A Compelling Need: Why Missouri Should Recognize a Tort For Third-Party Spoliation
This article does not suggest that Missouri should adopt an independent tort when the alleged spoliator is a party in the underlying action. As explained below, when the alleged spoliator is not a party to the underlying lawsuit, however, the analysis dramatically changes. Missouri law impliedly issues a spoliation license to any third party who seeks to destroy evidence. It is time to revoke that license.
First, traditional remedies are available and often effective in punishing parties who destroy evidence. These remedies include adverse inferences, irrebuttable presumptions, and default judgments that are wholly inapplicable in the context of third-party spoliation.47 Where the spoliator is not a party in the underlying suit, these sanctions are nothing but a hollow deterrence.48 For example, the traditional remedy of an evidentiary inference is wholly inapplicable to a third party. A fact-finder may not use an adverse inference against a third party to determine liability in the underlying case. Therefore, if a third-party spoliation tort is not recognized, "there may be no civil remedy to compensate a litigant who is victimized by a nonparty spoliator."49 For this reason, "[e]ven some of the tort's harshest critics conclude that the tort should be kept alive solely to protect against nonparties."50 Indeed, several jurisdictions have noted the failure of traditional remedies in the third-party context to recognize a tort for the negligent and/or intentional spoliation of evidence by third parties.51
For example, in Holmes v. Amerex Rent-A-Car,52 the plaintiff was operating an automobile rented to him by Amerex Rent-A-Car ("Amerex") when he was involved in a head-on collision with another vehicle.53 The plaintiff alleged that, as a result of the collision, the engine of the rented vehicle entered the passenger compartment, causing severe and permanent injuries.54
After the accident, Amerex took possession of the vehicle the plaintiff was driving.55 Amerex informed the plaintiff's attorney that the car would be held for plaintiff, and eventually agreed to sell the car to the plaintiff.56 Before this sale was consummated, however, an agent of Amerex sold the car to a salvage yard, and the salvage yard severed the front of the car and removed the engine.57 An expert in accident reconstruction stated that, as a result, it was "impossible to determine . . . whether or not the vehicle had design, manufacturing and/or maintenance defects which proximately caused Mr. Holmes' injuries."58
The plaintiff's original complaint alleged that Chrysler negligently designed the engine of the car, and that Amerex negligently maintained the vehicle.59 Because the engine was destroyed, the plaintiff dismissed Chrysler from the lawsuit and named Amerex as the sole defendant.60 The amended complaint sought damages for the negligent spoliation of evidence and tortious interference with a prospective civil action.61 Therefore, the issue before the court in Holmes was whether, under District of Columbia law, the tort of negligent or reckless spoliation of evidence by a third party should be recognized.62 The court ruled in the affirmative, and allowed the plaintiff to proceed with his negligent spoliation claim.
The Holmes court began its analysis by noting that if a party in an underlying lawsuit spoliates evidence, the fact-finder is entitled to draw an adverse inference against that party. The court correctly recognized, however, that traditional spoliation remedies are irrelevant when a third party destroys evidence. As a result, the relief plaintiff requested was justified, as "[n]ew torts are recognized when an interest requiring protection from unreasonable interference is identified."63 The court believed that a remedy should be available to those whose
expectancy of recovery has been eliminated or severely hampered through the negligent or reckless acts of another. In the third-party defendant scenario presented in this case, however, the already recognized remedy of permitting an adverse inference against the spoliator would serve no purpose. "[B]ecause sanctions may not be levied upon a disinterested, independent third party, an independent tort action for negligent spoliation of evidence is the only means to deter the negligent destruction of evidence and to compensate the aggrieved party for its destruction." 64
As correctly explained by
Holmes, Missouri's adverse inference remedy is an impotent response to third-party spoliation. Standing alone, this fact should be enough to recognize a third-party spoliation tort.
Second, deleterious consequences could follow Missouri's refusal to recognize a tort for third-party spoliation. Absent a third-party spoliation tort, the integrity of our judicial system is jeopardized.65 When evidence helpful to one party is absent, courts cannot administer even-handed justice.66 Economically, destruction of evidence often increases the costs of litigation as parties attempt to reconstruct the destroyed evidence.67
In sharp contrast, the benefits of recognizing a tort for third-party spoliation are numerous. Recognition will curtail third-party spoliation by putting businesses, governmental entities, and individuals on notice that if they destroy evidence, serious consequences could result.68 It seems indubitably obvious that such notice would curtail both intentional and negligent spoliation. This effect would thereby promote "an individual's due process right to have one's grievances heard by a court of competent jurisdiction utilizing all relevant evidence."69
Several jurisdictions have agreed that a tort for third-party spoliation is absolutely necessary for very good reasons.70 When squarely presented with this issue, Missouri courts would be wise to follow the lead of these jurisdictions. If Missouri refuses, it will "invite destruction or suppression of relevant evidence by a . . . third party, thus creating or continuing the perception that individual due process rights are unimportant or are somehow being trampled by the judicial system itself."71
III. The Reasons Against Recognizing a Third-Party Spoliation Tort Are Not Persuasive
To be sure, some courts have refused to recognize a spoliation tort against third parties. Generally, these courts proffer several reasons for not recognizing the tort, including: (1) an "important interest of finality in adjudication"; (2) uncertainty concerning the amount of damages caused by the destruction of evidence and the very existence of injury; and (3) "[n]ontort remedies for spoliation are sufficient in the vast majority of cases."72 These arguments are unpersuasive and misguided, and will be disposed of in reverse order.
First, there is little dispute that non-tort remedies are sufficient to address spoliation in the majority of cases. That fact does not remove the need for a spoliation tort against third parties. As explained above, traditional spoliation remedies are wholly ineffective in preventing and deterring third-party spoliation.73 Imagine, for example, a wrongful death case where evidence critical to a plaintiff's case is destroyed by a third party. Under current Missouri law, there would be no redress for the plaintiff, either against the named defendant or against the spoliator. That plaintiff would hardly take solace in the fact that non-tort remedies are "sufficient in the vast majority of cases."74 Nor should our justice system tolerate such an unsavory result.
Second, it is obvious that a third-party spoliator should not be required to pay damages to a plaintiff who had a frivolous underlying claim. Therefore, standards must be in place to determine the very existence of the injury caused by the spoliation. This is not an impossible task, and courts that have recognized a spoliation tort have crafted well-reasoned standards to address the causation requirement.75
These jurisdictions generally agree that "it would be too heavy a burden on a plaintiff to show that he or she would have won with the missing evidence. Such a showing would be nearly impossible because judges or juries cannot evaluate the value of evidence they cannot see."76 Although the contours vary from state to state, the general causation requirements are: "(1) the underlying claim was significantly impaired due to the spoliation of evidence; (2) a [proximate] relationship exists between the projected failure of success in the underlying action and the unavailability of the destroyed evidence; and (3) the underlying lawsuit would enjoy a significant possibility of success if the spoliated evidence were still [in existence]."77 Missouri and other courts could easily apply this causation requirement should it adopt a tort for third-party spoliation.
Similarly, questions surrounding the amount of damages caused by the destruction of evidence should not bar recognition of a tort for third-party spoliation. Of course, a plaintiff is generally required to prove damages with reasonable certainty.78 By its very nature, however, a spoliation tort does not allow for calculations of damages to a proper degree of certainty.79 Consequently, some courts have stated that "[t]he most difficult aspect of a spoliation-of-evidence tort is the calculation of damages."80 This concern is misplaced. Simply because damages are, to a certain extent, speculative, does not per se preclude a plaintiff from recovery. The United States Supreme Court recognized early on that
[w]here the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts.81
To calculate damages in a spoliation case, courts have wrestled with several possible solutions. Although a perfect solution is idealistic, one method has been approved of in several cases. This method first calculates a reasonable estimation of damages based on all relevant data. The number arrived at is then multiplied by the probability that the plaintiff would have been successful in the underlying action if the spoliated evidence had been available.82 For example, if a jury decided that the expected recovery in the underlying action was $1 million and there was a 60 percent possibility that the plaintiff would have recovered that amount in the underlying action if the evidence had not been destroyed, then the award of damages would be $600,000 (60 percent of $1 million). This common-sense approach has been applied with success in other jurisdictions, and there is no question it could be similarly applied under Missouri law.
Finally, courts rejecting an independent spoliation tort often stress the "important interest of finality in adjudication."83 The concern here is that a spoliation tort may lead to the re-litigation of already adjudicated issues. This could lead to an inefficient judicial system, but could also violate long-standing principles of res judicata and collateral estoppel by preventing the finality of judgments.84 This undesirable consequence, however, only arises when the spoliation tort is brought after the underlying action has ended, not when the tort is claimed in the original action. Moreover, if courts honestly believe that "nontort remedies for spoliation are sufficient in the vast majority of cases," then recognition of a third-party spoliation tort will have little impact on the interest of finality in adjudication. 85
One final argument against a third-party tort should be addressed. Even if Missouri (or other jurisdictions) refuses to recognize a tort for first-party intentional or negligent spoliation of evidence, that doesn't necessarily preclude it from adopting a tort for third-party spoliation. This conclusion appears to be a novel concept in some jurisdictions. Incredibly, a New York appellate court recently stated that "it stands to reason that those courts that do not recognize [a tort for intentional or negligent spoliation] against a first party likewise would not recognize one against a third party."86
This statement is fallacious, and should be summarily disregarded by both courts and commentators alike. As stated above, discovery sanctions, adverse inferences, and other devices may be used to effectively curb spoliation by a party to the lawsuit. Therefore, the benefits of a spoliation tort may be outweighed by the burdens when the spoliator is a party. The traditional spoliation remedies, however, are meaningless when the spoliator is not a party to the underlying lawsuit. Consequently, simply because a jurisdiction does not recognize a tort for spoliation against parties does not necessarily mean that the jurisdiction would not permit such a tort for third-party spoliation.
IV. Conclusion87
When squarely presented with the issue, Missouri should recognize a tort for the third-party spoliation of evidence, whether intentional or negligent. This cause of action will preclude "endless litigation between the same parties while providing a mechanism to punish and deter spoliators."88 There are arguably legitimate reasons why Missouri should reject the tort, and reasonable minds may differ as to whether a spoliation tort of any type is beneficial. For the reasons explained above, however, a third-party spoliation tort is a necessary evil.
Endnotes
1 Mr. Clark is a graduate of the University of Iowa College of Law, where he was elected to the Order of the Coif. He wrote this article while practicing with Spencer, Fane, Britt & Browne LLP in Kansas City. Mr. Clark is currently on sabbatical from his practice at Spencer Fane to serve as a United States judicial clerk for the Western District of Missouri with the Honorable Dean Whipple.
2Oliver v. Stimson Lumber Co., 993 P.2d 11, 17 (Mont. 1999). As a preliminary matter, it should be noted that this article only addresses the spoliation of evidence in a pending or potential civil action. Stefan Rubin, "Tort Reform: A Call For Florida to Scale Back its Independent Tort for the Spoliation of Evidence," 51 Fla. L. Rev. 345, 347 (1999) (recognizing that spoliation of evidence in a criminal trial could violate the defendant's right to a fair trial under the Sixth Amendment of the U.S. Constitution).
3As used throughout this article, "third-party" is simply an individual or business who is not a named party in an underlying civil action. At least one other commentator has expressed the need for Missouri to adopt a third-party spoliation tort. See Kathleen Kedigh, "Spoliation: To the Careless Go the Spoils," 67 UMKC L. Rev. 597 (1999).
4Black's Law Dictionary 1409 (7th ed. 1999); Baugher v. Gates Rubber Co., Inc., 863 S.W.2d 905, 907 (Mo. App. E.D. 1993) (stating that "'spoliation' is the destruction or significant alteration of evidence.")
5See Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, 346-47 (1999).
6Viviano v. CBS, Inc., 597 A.2d 543, 550 (N.J. Super. Ct. App. Div. 1991).
7Goff v. Harold Ives Trucking Co., Inc., 27 S.W.3d 387, 389 (Ark. 2000).
8Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998).
9See, e.g., Morris v. J.C. Penney Life Ins. Co., 895 S.W.2d 73, 77 (Mo. App. W.D. 1995).
10Pomeroy v. Benton, 77 Mo. 64, 86-87 (1882); see also Brown v. Hamid, 856 S.W.2d 51, 56-57 (Mo. banc 1993) (stating that "Missouri has, for over a century, enforced an evidentiary spoliation inference . . . "). Under certain facts, it could be argued that a party responsible for spoliating evidence should be subject to discovery sanctions under the Missouri Rules of Civil Procedure 61.01.
11Moore v. General Motors Corp., 558 S.W.2d 720, 736 (Mo. App. E.D. 1977). One commentator aptly recognized that Missouri's approach to the adverse inference, "which focuses solely upon intent, ignores the prejudice suffered by the innocent party." Brian E. Howard, Spoliation of Evidence, 49 J. Mo. Bar 121 (1993).
12See Baldridge v. Director of Revenue, 82 S.W.3d 212 (Mo. App. W.D. 2002). Missouri courts hold that an adverse evidentiary inference may also be issued when a party conceals or suppresses evidence. See, e.g., DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. App. W.D. 2002) (stating that although "Missouri spoliation cases have usually dealt with the destruction of evidence, the principles of law in the cases apply equally to application of the spoliation doctrine because a party has concealed or suppressed evidence.")
13Morris, 895 S.W.2d at 77-78.
14Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 526 (Mo. App. E.D. 1998).
15See, e.g., Telecom Int'l America Ltd. v. AT&T Corp., 67 F. Supp.2d 189 (S.D. N.Y. 1999) (recognizing that dismissal may be appropriate remedy where a party demonstrates bad faith of willfulness in destruction of evidence); Minn. Stat. § 609.63(7) (1987); Craft v. Vanderbilt Univ., 940 F. Supp. 1185 (M.D. Tenn. 1996) (defendant spoliator bore burden of rebutting presumption that plaintiffs were not exposed to substance in toxic tort action).
16See, e.g., Trevino, 969 S.W.2d at 951-53 (Tex. 1998); Goff, 27 S.W.3d at 391 (Ark. 2000); Dowdle Butane Gas Co., Inc. v. Moore, 831 So.2d 1124 (Miss. 2002) (refusing to recognize tort for intentional spoliation against both first and third-party spoliators). Importantly, courts that refuse to recognize first-party spoliation often explain that spoliation of evidence by persons who are not parties to the underlying suit is not an issue before the court. See Trevino, 969 S.W.2d at 951.
17See, e.g., Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 753 N.Y.S.2d 272 (N.Y. 2002) (declining to recognize independent spoliation tort regardless of whether the spoliation is committed by a first or third party); Timber Tech Engineered Building Products v. Home Ins. Co., 55 P.3d 952, 954 (Nev. 2002) (same).
18969 S.W.2d 950 (Tex. 1998).
19Id. at 951.
20Id.
21Id. at 951.
22Id. at 953 (citing cases). In using the term "death penalty," the court presumably meant using either a summary or default judgment to sanction the spoliator.
23See, e.g., Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247 (Del. Super. Ct. 1998); Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997) (recognizing that the "vast majority of jurisdictions have chosen to counteract a party's deliberate destruction of evidence with jury instructions and civil penalties").
24Petrik v. Monarch Printing Corp., 501 N.E.2d 1312, 1319 (Ill. App. Ct. 1986).
25Hazen v. Municipality of Anchorage, 718 P.2d 456, 464 (Alaska 1986).
26Bart S. Wilhoit, Spoliation of Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev. 631, 669 (1998).
27See Tinder v. Lewis County Nursing Home Dist., 207 F. Supp.2d 951, 959 (E.D. Mo. 2001) (applying Missouri law); Baugher, 863 S.W.2d at 907-08 (stating that "Missouri has not recognized spoliation, either intentional or negligent, as the basis for tort liability against either a party or non-party . . . ."). Missouri has not recognized a spoliation tort for either first or third-party spoliation.
28863 S.W.2d 905 (Mo. App. E.D. 1993).
29Id. at 906.
30Id.
31Id. at 907.
32Id.
33Id.
34Id. at 908.
35Id. at 909-10 (citing Smith v. Superior Court, 198 Cal.Rptr. 829, 836-37 (Cal. Ct. App. 1984)). It should be noted that California has subsequently expressed disapproval over recognition of an independent spoliation tort. See Cedars-Sinai Medical Center v. Superior Court, 954 P.2d 511 (Cal. 1998) (expressly disapproving Smith v. Superior Court, the first case to recognize a spoliation tort).
36Id. at 910.
37Id.
38Id.
39Id.
40Id. at 913.
41Id. at 914.
42Id.
43Id.
44Id.
45Id.
46Id. Unfortunately, this statement feeds the argument that a spoliation tort would result in an "endless spiral of lawsuits." Temple Community Hospital v. Superior Court, 976 P.2d 223 (Cal. 1999). To derail this argument, Missouri courts may choose to allow a single trier-of-fact to hear an action for spoliation concurrently with the underlying suit on which it is based. See Miller v. Allstate Ins. Co., 573 So.2d 24, 28 (Fla. Dist. Ct. App. 1990).
47Oliver, 993 P.2d at 17-18.
48See, e.g., Oliver, 993 P.2d at 18 (recognizing tort of spoliation of evidence, which may be negligent or intentional," as an independent cause of action" with respect to third parties); Smith v. Atkinson, 771 So.2d 429, 432 (Ala. 2000); Continental Ins. Co. v. Herman, 576 So.2d 313, 315 (Fla. Dist. Ct. App. 1990); Thompson ex rel. Thompson v. Owensby, 704 N.E.2d 134, 136-40 (Ind. Ct. App. 1998). But see Dowdle Butane Gas Co., Inc., 831 So.2d at 1135 (refusing to recognize intentional spoliation of evidence against first- and-third party spoliators as independent cause of action).
49Jonathan Judge, Reconsidering Spoliation: Common-Sense Alternatives to the Spoliation Tort, 2001 Wis. L. Rev. 441, 459 (2001).
50Id.
51Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, 365 (1999).
52710 A.2d 846 (D.C. Cir. 1998).
53Id. at 847.
54Id.
55Id.
56Id.
57Id. at 847-48.
58Id. at 848.
59Id.
60Id.
61Id.
62Id.
63Id.
64Id. at 849 (quoting John K. Stipancich, The Negligent Spoliation of Evidence: An Independent Tort Action May Be the Only Acceptable Alternative, 53 Ohio. St. L.J. 1135, 1141-42 (1992)).
65See Callahan v. Stanley Works, 703 A.2d 1014, 1017 (N.J. Super. Ct. Law. Div. 1997).
66See id. (stating that spoliation "creates enormous costs for both the victimized party and the judicial system, prevents fair and proper adjudication of the issues, and interferes with the administration of justice.").
67See Cedars-Sinai Medical Ctr., 954 P.2d at 515.
68See Callahan, 703 A.2d at 1017.
69Id. citing Terry R. Spencer, Do Not Fold Spindle Or Mutilate: The Trend Towards Recognition of Spoliation as a Separate Tort, 30 Idaho L. Rev. 37, 63 (1993).
70See, e.g., Oliver, 993 P.2d at 18 (recognizing tort of spoliation of evidence, which may be negligent or intentional, "as an independent cause of action" with respect to third parties); Smith, 771 So.2d at 432; Continental Ins. Co., 576 So.2d at 315; Thompson, 704 N.E.2d at 136-40. Boyd v. Traveler's Ins. Co., 652 N.E.2d 267, 269-72 (Ill. 1995). But see Dowdle Butane Gas Co., Inc., 831 So.2d at 1135 (refusing to recognize intentional spoliation of evidence against first- and-third party spoliators as independent cause of action).
71See Callahan, 703 A.2d at 1017 (citing Terry R. Spencer, Do Not Fold Spindle Or Mutilate: The Trend Towards Recognition of Spoliation as a Separate Tort, 30 Idaho L. Rev. 37, 63 (1993)).
72See Dowdle Butane Gas Co., Inc., 831 So.2d at 1130, 1135. To be sure, this list is not exhaustive, and courts often cite additional reasons for not recognizing a spoliation tort. In the interest of brevity, this article will not discuss every rationale provided by these courts. Instead, the following attempts to provide a representative flavor of the arguments against recognition of a spoliation tort.
73See Holmes, 710 A.2d at 849.
74See Dowdle, 831 So.2d at 1135.
75Oliver, 993 P.2d at 20; see also Holmes, 710 A.2d at 850.
76See Petrik, 501 N.E.2d at 1322.
77Oliver, 993 P.2d at 21; Holmes, 710 A.2d at 852. See also Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 271 (Ill. 1995) (stating that in a negligence action for the spoliation of evidence, a "plaintiff must demonstrate . . . that but for the defendant's loss or destruction of evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit").
78Delgado v. Mitchell, 55 S.W.3d 508, 512 (Mo. App. S.D. 2001) (stating that "a damage award must be based on more than a 'gossamer web of shimmering speculation and finely-spun theory.'").
79Holmes, 710 A.2d at 852.
80Petrik, 501 N.E.2d at 1320.
81Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931). See also Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264-65 1946 (recognizing that the most elementary notions of public policy require the wrongdoer to "bear the risk of the uncertainty" which his own wrong has established).
82See, e.g., Petrik, 501 N.E.2d at 1320; Holmes, 710 A.2d at 853; Oliver, 993 P.2d at 21.
83Stefan Rubin, Tort Reform: A Call for Florida to Scale Back its Independent Tort for the Spoliation of Evidence, 51 Fla. L. Rev. 345, 367 (1999).
84Id.
85Id. (citing Smith v. Superior Court, 198 Cal.Rptr. at 833-34, overruled by Cedars-Sinai Medical Ctr., 954 P.2d at 511).
86Metlife Auto & Home v. Joe Basil Chevrolet, Inc., 753 N.Y.S.2d 272 (N.Y. 2002) (quoting Temple Community Hosp., 976 P.2d at 225).
87 Observant readers may have noticed that this article fails to offer suggestions on the elements of a negligent or intentional third-party tort. See, e.g., Holmes, 710 A.2d at 854 (listing the elements of a negligent spoliation claim as "(1) [the] existence of a potential civil action; (2) a legal or contractual duty to preserve evidence [that] is relevant to that action; (3) destruction of that evidence by the duty-bound defendant; (4) significant impairment in the ability to prove the potential civil action; (5) a proximate relationship between the impairment of the underlying suit and the unavailability of the destroyed evidence; (6) a significant possibility of success of the potential civil action if the evidence were available; and (7) damages"); Oliver, 993 P.2d at 22 (listing elements of intentional spoliation claim as "(1) the existence of a potential lawsuit; (2) the defendant's knowledge of [that] suit; (3) the intentional [spoliation] designed to disrupt" the suit; (4) disruption of the suit; "(5) a causal relationship between the . . . spoliation and the inability to prove the law suit; and (6) damages"). At the threshold, a court confronted with a third party spoliation claim must determine whether such a tort is desirable. The goal of this article is to simply help courts cross that first hurdle and rule that it is, rather than offer advice on what the elements of a third-party tort should be.
88Kathleen Kedigh, Spoliation: To the Careless Go the Spoils, 67 UMKC L. Rev. 597, 608 (1999).
JOURNAL OF THE MISSOURI BAR
Volume 59 - No. 6 - November-December 2003