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Spoliation Part II - Tort

Posted 3 years 205 days ago ago by hesterd@ksbrlaw.com

It was not until around 1997 that spoliation of evidence was recognized as an independent tort.  Pham v. Contico Int’l, Inc., 99-945 (La. App. 5th Cir. 3/22/00); 759 So. 2d 880, 882The tort of spoliation is now recognized by all Louisiana circuits, but like with the adverse presumption, the elements of the tort differ in the various circuits.  For a brief review of the conflicting law, see the chart below:

 

Spoliation As An Independent Tort

First Circuit

In a negligent spoliation case, the plaintiff must prove duty, and duty can be established if there is evidence that a party knew a suit would be filed when the evidence was discarded.  Higgins v. Richard, 2008-2504 (La. App. 1st Cir. 6/12/09), 2009 WL 2486892, *2; McCleary v. Terrebonne Parish Consol. Gov’t, 2009-2208 (La. App. 1st Cir. 9/30/10), 2010 WL 3822225, *3.

 

“A plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient.”  Clavier v. Our Lady of the Lake Hosp. Inc., 2012-0560 (La. App. 1st Cir. 12/28/12); 112 So. 3d 881, 885.

Second Circuit

To state a claim for negligent spoliation of evidence, the plaintiff must formally allege the specific source of that duty; it must be more than a general tort duty.  Carter v. Exide Corp., 27,358 (La. App. 2d Cir. 9/29/95); 661 So. 2d 698, 705.

 

To state a claim for spoliation, the plaintiff must demonstrate: (1) the intentional or negligent destruction of evidence, and (2) that the destruction was for the purpose of depriving the plaintiff of its use.  There must be evidence that defendant knew suit would be filed.  Aymond v. Am. Nat. Prop. & Cas. Co., 48,615 (La. App. 2d Cir. 11/20/13); 130 So. 3d 10, 14.

Third Circuit

In a claim for negligent spoliation of evidence, the duty to preserve evidence can arise from general negligence principles.  Bethea v. Modern Biomedical Servs., Inc., 97-332 (La. App. 3d Cir. 11/19/97); 704 So. 2d 1227, 1233.

 

“Imposition of liability under the theory of spoliation of evidence is inappropriate when the record reveals no intentional destruction of evidence for the purpose of depriving the opposing party of its use.”  Arnold v. Brookshire Grocery Co., 2009-44 (La. App. 3d Cir. 5/6/09); 10 So. 3d 1279, 1281.

Fourth Circuit

To state a claim for spoliation, the evidence must be destroyed with the intent to deprive the plaintiff of its use.  Knowledge of potential lawsuit can create a duty to preserve the evidence.  Quinn v. RISO Investments, Inc., 2003-0903 (La. App. 4th Cir. 3/3/04); 869 So. 2d 922, 927; Everhardt v. Louisiana Dep't of Transp. & Dev., 2007-0981 (La. App. 4th Cir. 2/20/08); 978 So. 2d 1036, 1044.

Fifth Circuit

“A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient.”  Zurich Am. Ins. Co. v. Queen's Mach. Co., Ltd, 08-546 (La. App. 5th Cir. 1/27/09); 8 So. 3d 91, 97.

 

There is a cause of action for negligent spoliation of evidence if the defendant had a duty to preserve the evidence.  The duty must arise from statute, contract, special relationship, or affirmative undertaking; it cannot arise from general negligence principles.  Longwell v. Jefferson Parish Hosp. Serv. Dist. No. 1, 07-259 (La. App. 5th Cir. 10/16/07); 970 So. 2d 1100, 1105; Zurich Am. Ins. Co. v. Queen's Mach. Co., Ltd, 08-546 (La. App. 5th Cir. 1/27/09); 8 So. 3d 91, 97.






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