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Spoliation Part I - Adverse Presumption

Posted 3 years 219 days ago ago by hesterd@ksbrlaw.com

Historically, spoliation of evidence was simply an evidentiary doctrine.  It referred to an adverse presumption, which allowed the judge to instruct the jury that the destroyed evidence contained information detrimental to the party who failed to produce it, unless there was a reasonable explanation for the destruction.  Pham v. Contico Int’l, Inc., 99-945 (La. App. 5th Cir. 3/22/00), 759 So. 2d 880, 882.  The justification for this presumption is procedural fairness.  Frank Maraist, 19 Louisiana Civil Law Treatise, Evidence and Proof § 4.3 (2d ed.).  Despite the established viability of the adverse presumption arising from spoliation, the Louisiana appellate courts have applied it differently, with some circuits requiring intent, and others requiring simple negligence:

Spoliation As An Adverse Presumption

First Circuit

For the adverse presumption to apply, there must be intentional destruction of evidence for the purpose of denying the plaintiff of its use.  The presumption is inapplicable if there is a reasonable explanation.  Randolph v. Gen. Motors Corp., 93-1983 (La. App. 1st Cir. 11/10/94); 646 So. 2d 1019, 1027.

 

“Moreover, under an intentional or negligence theory of spoliation, the presumption does not apply if the failure to produce the record is adequately explained.”  Paradise v. Al Copeland Investments, Inc., 2009-0315 (La. App. 1st Cir. 9/14/09); 22 So. 3d 1018, 1027.

Second Circuit

For the adverse presumption to apply, there must be intentional destruction of evidence for the purpose of denying the plaintiff of its use.  If the evidence was accidentally disposed of, there must have been a duty to preserve it.  In either case, the presumption is inapplicable if there is a reasonable explanation.  Wilhite v. Thompson, 42,395 (La. App. 2d Cir. 8/15/07); 962 So. 2d 493, 498; Lewis v. Albertson’s Inc., 41,234 (La. App. 2d Cir. 6/28/06); 935 So. 2d 771, 774–75.

Third Circuit

The adverse presumption applies in cases where it is proven that a party “destroyed, altered, concealed, or failed to produce evidence relevant to the pending civil claim, and they could not reasonably explain their actions.”  Guillory v. Dillard’s Dep’t Store, Inc., 2000-190 (La. App. 3d Cir. 10/11/00); 777 So. 2d 1, 3.

Fourth Circuit

Before the factfinder can be instructed on an adverse inference and/or presumption of spoliation, the party controlling the evidence must have a duty to preserve it and must have intentionally destroyed the evidence for the purpose of depriving plaintiff of its use.  The presumption is inapplicable if there is a reasonable explanation.  Everhardt v. Louisiana Dep’t of Transp. & Dev., 2007-0981 (La. App. 4th Cir. 2/20/08); 978 So. 2d 1036, 1044; Kammerer v. Sewerage & Water Bd. of New Orleans, 93-1232 (La. App. 4 Cir. 3/15/94), 633 So. 2d 1357.

Fifth Circuit

For the adverse presumption to apply, there must be intentional destruction of evidence for the purpose of denying the plaintiff of its use, and no reasonable explanation for the destruction.  Pham v. Contico Int’l, Inc., 99-945 (La. App. 5th Cir. 3/22/00); 759 So. 2d 880, 882.






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