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By Melissa B. Caruso

Spoliation of evidence is the evidentiary doctrine that refers to destruction or significant alteration of evidence, or the failure to preserve evidence, for another’s use as evidence in pending or future litigation.  While there can be a statutory duty, a contract, a special relationship between the parties, or an affirmative agreement or undertaking to preserve the evidence, such as the duty to preserve medical records for a particular number of years, the duty to preserve evidence can also arise once a party has a “reasonable expectation” of litigation.

The general rule is if a party intentionally disposes of evidence, it can become subject to sanctions.  Before imposing sanctions, though, courts consider whether the party having control over the evidence had an obligation to preserve it at the time it was destroyed and, once satisfied that there was an obligation, the court considers whether the evidence was intentionally destroyed.  Importantly, an obligation to preserve evidence can arise when the party has notice that the evidence is relevant to litigation, or when a party should have known that the evidence may be relevant to future litigation.

If spoliation is proven, then generally an adverse presumption that the evidence was detrimental to his cause is allowed against the party that destroyed or disposed of the evidence.  But, Louisiana law provides that the inference is unwarranted where there is a reasonable excuse for the destruction of evidence.  For example, when a suit has not been filed and there is no evidence that the party knew litigation would ensue when he discarded the evidence, the adverse presumption may be avoided.  It may also be avoided if the party accused of destroying or not producing the evidence comes forth with a reasonable and adequate explanation.  If not adequately explained, however, the aggrieved party may be entitled to the jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence.

Prior to 1997, the only remedy Louisiana courts had granted for spoliation of evidence claims was the application of the adverse presumption.  Several Louisiana jurisdictions, however, have set the stage to recognize a distinct and separate tort for spoliation of evidence, sometimes called “impairment of a civil claim.”

For example, in Pham v. Contico International, Inc., 759 So.2d 880 (La. App. 5th Cir. 2000), the court considered whether a worker’s compensation claimant had a separate cause of action in tort against his employer for spoliation of evidence to be used against a third party in a tort suit.  In this case, the employee was injured during the scope of his employment when he leaned against a crate that gave way, and the employer returned the crate to the warehouse without marking its identity.  When the employee sued the manufacturer of the crate, he also sued his employer for spoliation of evidence, alleging that his claim against the manufacturer would be impossible, or at least more difficult, to prove without the “destroyed evidence.”  The employer claimed it was immune from the tort suit by virtue of the Workers Compensation Act, and, while the court ultimately dismissed the tort suit for spoliation against the employer, it did not do so on the grounds of immunity under the Workers Compensation Act.  The court recognized that the employer could be sued in tort for destroying evidence but, because the employee’s suit did not claim that the evidence had been intentionally destroyed, the petition did not meet certain threshold requirements.  Other Louisiana courts have also recognized that a well-pled petition stating a claim for intentional spoliation could stand as a separate and distinct cause of action, and that the employer cannot shield itself from tort immunity provided in the state Worker’s Compensation Act.  See Carter v. Exide, 27,358 (La. App. 2 Cir. 9/29/95), 661 So.2d 698, and Bethea v. Modern Biomedical Services, Inc., 97-332 (La. App. 3 Cir. 11/19/97), 704 So.2d 1227.

Generally, the duty to preserve evidence begins when a party is on notice that the evidence may be needed in court.  Once suit is filed, evidence must be presumed or run the risk of sanctions or penalties.  This is also true prior to actual filing of litigation: if litigation is reasonably foreseeable, the prudent course is to preserve all that evidence which could foreseeably be of relevance.  While there is no definite answer from the Supreme Court as to whether a separate tort of spoliation exists and requires either negligent or intentional conduct, in 2011 a federal district court interpreting Louisiana law stated that because the tort of spoliation is derived from the evidentiary theory of adverse presumption, the tort should require the same motive as the evidentiary theory.  Bertrand v. Fischer, 2011 WL 6254091 (W.D. La. 2011).  Therefore, the court reasoned that because the adverse presumption theory of spoliation requires intent, “it would be inconsistent to require intentional conduct for one, but not the other.”  Subsequently, the First Circuit, in Clavier v. Our Lady of the Lake Hosp. Inc., 12-0560 (La. App. 1 Cir. 12/28/12), 112 So.3d 881, agreed that the theory of spoliation of evidence referred to an intentional destruction of evidence, and allegations of negligent conduct were insufficient to state a cause of action.

The lesson to be learned is that if there is a reasonable expectation of litigation, a person or business should take all reasonable precautions to preserve the evidence in order to avoid a lawsuit for spoliation of evidence, and avoid the jury being instructed that an adverse presumption against you is allowed.