Spoliation of evidence

The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.[1] Spoliation has two possible consequences: in jurisdictions where the (intentional) act is criminal by statute, it may result in fines and incarceration (if convicted in a separate criminal proceeding) for the parties who engaged in the spoliation; in jurisdictions where relevant case law precedent has been established, proceedings possibly altered by spoliation may be interpreted under a spoliation inference, or by other corrective measures, depending on the jurisdiction.

The spoliation inference is a negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding: the finder of fact can review all evidence uncovered in as strong a light as possible against the spoliator and in favor of the opposing party.

The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had "consciousness of guilt" or other motivation to avoid the evidence. Therefore, the factfinder may conclude that the evidence would have been unfavorable to the spoliator. Some jurisdictions have recognized a spoliation tort action, which allows the victim of destruction of evidence to file a separate tort action against a spoliator.[2]

Spoliation is often an issue in the context where a person claims he has been injured by a defective product which he then discarded or lost.[3] In that circumstance, the defendant manufacturer or distributor may move to dismiss the case on the basis of spoliation (instead of just having to rely on the plaintiff's usual burden of proof, the argument being that any testimony of plaintiff's witnesses would not overcome the spoliation inference born of the lost evidentiary value of the missing product itself).[4]

Brookshire Brothers Ltd. v. Aldridge

The use of a spoliation inference may be warranted depending on the circumstances, but not all cases of spoliation warrant this serious response by the court. In a 2013 case before the Texas Supreme Court named Brookshire Brothers Ltd. v. Aldridge, A man named Jerry Aldridge went into one of Brookshire Brothers' supermarkets, and after a few minutes in the store, slipped and fell. He went to a doctor approximately 90 minutes later, and returned to the store five days after the accident to complain of back injuries caused by the fall. The supermarket chain's security department only kept what it felt was the relevant part of that store's surveillance video consisting of just before to a few minutes after Mr. Aldridge slipped and fell.

When he first filed suit against Brookshire Brothers without an attorney, Mr. Aldridge was able to get video evidence consisting of the 30 seconds before he slipped and fell, plus the next seven minutes. He attempted to obtain more of the store's video surveillance footage, but was refused. When he hired an attorney, the attorney was also unable to obtain footage from before or after the event (which might have been useful to prove negligence based on how long the spill was on the floor, or on the seriousness of Mr. Aldridge's injury). The store's surveillance system automatically writes over previously recorded video after 30 days, unless saved separately. Brookshire Brothers did not keep any additional footage from before or after the accident.

The trial court judge found that the store's refusal to provide the additional video footage constituted spoliation, and gave the jury a "spoliation inference instruction". The jury was instructed that they may find the failure by the store to retain (and subsequently provide to the other party) the additional footage may be considered an attempt to hide evidence that Brookshire Brothers' management knew would be damaging to their case. The jury returned a verdict for Mr. Aldridge in excess of US $1 million. The Texas Twelfth District Court of Appeals upheld the verdict and the spoliation inference instruction. The Texas Supreme Court reversed, ordering a new trial, stating that it was abuse of discretion by the trial court to issue a spoliation inference instruction in this case, that the court should have imposed a different corrective measure on Brookshire Brothers (a less severe sanction), and that a spoliation inference instruction to the jury is only warranted in egregious cases of destruction of relevant evidence.[5]

Tampering with evidence

A closely related concept to spoliation of evidence is tampering with evidence, which is usually the criminal-law version of the same concept, namely when a person alters, conceals, falsifies, or destroys evidence in an investigation by law enforcement or by a regulatory authority. An act of ruining or destroying evidence may sometimes be considered both spoliation of evidence and tampering with evidence. For example, when police destroy their own dashboard-camera footage or seize and destroy a citizen's video footage of an incident, it may constitute spoliation of evidence in a criminal case against the defendant if the footage tended to create reasonable doubt for the defendant, and also constitute tampering if the video were evidence of police misconduct in a criminal or regulatory investigation of the police's actions. The goal of spoliating or tampering with evidence is usually to cover up evidence that would be disfavorable to the doer in some way.

Spoliation of evidence is often important in e-discovery matters, as oftentimes records in electronic form such as SMS messages may be difficult to retrieve, preserve, or monitor.

Companies and organizations often attempt to avoid spoliation of evidence (or being accused or held liable therewith) by using a legal hold. Often, the legal departments of the company or organization will issue a prescribed order to the relevant employees to retain and preserve their discoverable materials (such as e-mails and documents).

See also


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