July 2013 Bar Bulletin
 
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July 2013 Bar Bulletin

Breach of Trust: Dealing with Spoliated Evidence

By Matthew King

 

Spoliation is the intentional destruction of evidence.1 Washington courts treat spoliation as an evidentiary matter.

Where relevant evidence that would properly be part of a case is within the control of a party whose interests it would naturally be to produce it and that party fails to do so, without satisfactory explanation, the only inference the fact-finder may draw is that the evidence would be unfavorable to that party.2 To remedy spoliation, the court may apply a rebuttable presumption that shifts the burden of proof to the party who destroys or alters important evidence.3

In determining whether to apply the rebuttable presumption, a court considers: (1) the potential importance or relevance of the missing evidence; and (2) the culpability or fault of the adverse party.4 After weighing these two general factors, the trial court uses its discretion to craft an appropriate sanction.5

In weighing the importance of the evidence, the court considers whether the adverse party was afforded an adequate opportunity to examine it.6 Culpability turns on whether there is an innocent explanation for the destruction.7 A party's actions are "improper" and constitute spoliation where the party has a duty to preserve it in the first place.8 While a party may be responsible for spoliation absent a finding of bad faith, the party must have had a duty to preserve the evidence.9

In Henderson, the spoliation issue concerned whether the trial court should have imposed discovery sanctions for the destruction of an automobile involved in an accident.10 The court noted that the investigative value of the car was unclear and both parties had an opportunity to examine the car within the two years after the accident before the car was destroyed, but neither party retained experts to do so during that time.11 The court ultimately determined that the car's value as evidence was not imperative because it had questionable investigative value and numerous photographs were available to the experts.12

In Marshall, the plaintiff was injured while exercising on a treadmill at her health club.13 Marshall did not recall how the accident happened, but alleged she was thrown against a Plexiglas wall after the machine stopped and then re-started suddenly at a faster rate.14 The treadmill was used at the club for four years following Marshall's incident until the frame broke and it was returned to the manufacturer where it was ultimately destroyed.15

The court noted that Marshall did not request an inspection of the treadmill until more than four years following the incident and during that time she also failed to ask that the treadmill be preserved. Because Marshall had ample opportunity to inspect the unit, the court rejected her spoliation claim.16

By way of comparison, the federal courts treat spoliation slightly differently. As soon as a potential claim is identified, a litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.17 The future litigation must be probable.18 Even if there is intentional spoliation, the court does not dismiss the case, except in rare instances.


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