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    Violence Against Evidence--Spoliation

    By Matthew King

    Omnia Praesumunter Contra Spoliatorem
       -All things are presumed against the despoiler

    Spoliation is the intentional destruction of evidence.1 Of course, not all acts that destroy evidence will subject a party to sanctions. The term spoliation is usually used in the context of a party willfully and improperly destroying evidence.

    When presented with despoiled evidence, the first question is whether the despoiler had a duty to preserve the evidence in the first place. If no duty existed, no sanction should be imposed.2

    When Does the Duty Arise?
    The duty to preserve evidence arises when the party has notice of the potential for claims where the evidence would be relevant or important.3

    Sanctionable Conduct
    Once a duty to preserve has been established, the court can impose sanctions on a number of theories.4 This power is based in the court’s inherent power to control litigation and does not depend on violation of a prior court order or discovery request.5 The court, however, must choose the least severe sanction to be applied.6

    Two-Part Test
    In determining what sanctions are appropriate (1) the court considers the potential importance or the relevance of the destroyed evidence; and (2) the culpability of the despoiler.7

    In evaluating the importance of the destroyed evidence the court considers whether the destruction gives one party an investigative advantage over the other.8 The court also considers whether the other party had an adequate opportunity to examine the evidence.9

    Once the destroyed evidence is determined to be important, the court looks to the culpability of the destroyer. This involves determining whether the destruction was performed in bad faith or “conscious disregard of the importance of the evidence.”10 The cases are usually fact-specific and tend to have limited precedential value.

    Potential Sanctions
    The court can impose a variety of sanctions against a party that spoliates evidence. These sanctions include: allowing argument about the importance of the destroyed evidence, an adverse presumption about the importance of the evidence, exclusion of evidence (including other evidence), summary judgment and dismissal. In addition to the above, the court can impose monetary sanctions.

    Allowing argument about the unfavorableness of the evidence by the aggrieved party is the least severe sanction. This sanction arises from ER 1004 which addresses lost or destroyed evidence.

    If the court feels that simple argument is not a sufficient sanction, it can create and adverse presumption. This inference, however, is not by itself substantive evidence.11 Washington Pattern Jury Instruction 5.01 provides a sample instruction for the inference:

    When evidence is in the control of a party whose natural interests it would be to produce the evidence, and that party destroys that evidence without adequate cause, the jury is permitted, but not requested, to infer that such evidence would be unfavorable to that party. A party has control of evidence when the evidence is in the actual physical control of the party.

    However, the comments indicate that the Supreme Court does not seem to favor the giving of this instruction,12 thus limiting the effectiveness of this remedy.

    If an argument or presumption is not a sufficient remedy for the destruction of evidence, the court can exclude the spoliating party’s evidence. This includes the exclusion of other evidence not related to the despoiled evidence.13

    The court may also award summary judgment on a specific issue,14 or even dismiss claims or defenses entirely.15

    Electronic Records and Spoliation
    As electronic records become more common and more important to litigation, the doctrine of spoliation will likely be used where the electronic evidence is inaccessible. However, the preservation of electronic records is a more complex issue. One major issue is whether a party has a duty to ensure that obsolete electronic evidence can be accessed and retrieved. At least one court has held that there is no affirmative duty to ensure out-of-date electronic files can be accessed easily.16

    Another issue arises when an electronic document is updated and the old version is destroyed. Unless the new version was created for the purpose of destroying the old version in light of the pending litigation,17 no spoliation has occurred.18

    Spoliation has been an issue in the past, however, as we move into the digital millennium, we will need to adjust our expectations of evidence and its sources to include electronic documents and ensure that our clients can access and use the evidence available to them. n

    Matthew King is a Seattle attorney whose practice includes environmental and land use litigation, construction litigation, and insurance litigation. He can be reached at matthewking@abanet.org or at (206) 623-2369.

    1. Henderson v. Tyrell, 80 Wn. App. 592, 910 P.2d 522 (1996).
    2. See Marshall v. Bally’s PacWest, Inc., 94 Wn. App. 372, 972 P.2d 475 (1999).
    3. Pier 67 v. King County, 89 Wn.2d 379, 573 P.2d 2 (1977).
    4. Henderson v. Tyrell, 80 Wn. App. 592, 910 P.2d 522 (1996).
    5. Id.
    6. Tietjen v. Dept. of Labor and Indust., 13 Wn App. 86, 534 P.2d 151 (1975).
    7. Henderson, 80 Wn. App. at 605.
    8. Id.
    9. Id.
    10. Id.
    11. Walker v. Herke, 20 Wn.2d 239, 147 P.2d 255 (1944).
    12. See McFarland v. Commercial Boiler Works, 10 Wn.2d 81, 116 P.2d 288 (1941) and Rosenstrom v. North Bend Stage Lines, 154 Wash. 57, 280 P. 932 (1929) (reversing when the instruction was given) See Also, State v. Nelson, 63 Wn.2d 188, 386 P.2d 142 (1963); State v. Baker; 56 Wn.2d 846, 355 P.2d 806 (1960); Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 109 P.2d 542 (1941); and Norland v. Peterson, 169 Wash. 377, 13 P.2d 482 (1932)(affirming the refusal to give the instruction).
    13. Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp, 982 F.2d 363 (9th Cir., 1992).
    14. Id., See Also, Nelson v. Sheraton Operating Corp. 87 Wn. App. 1038, 1997 WL 524034 (1997).
    15. Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp, 982 F.2d 363 (9th Cir., 1992).
    16. Zubulake v. UBS Warburg LLC, et al, 216 F.R.D. 280 (S.D.N.Y. 2003).
    17. W.R.Grace & Co. v. Zotos Int’l., 2000 WL 1843258 (W.D.N.Y., November 2, 2000)(Where the court held that instructions to an expert to destroy electronic drafts may be sanctionable).
    18. Wechsler v. Hunt Health System, 2003 WL 470330 (S.D.N.Y. February 25, 2003).

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