||Posted 2 years 84 days ago ago by email@example.com
Two earlier blogs discussed the concept of spoliation of evidence, both as an adverse presumption and as an independent tort. The tort, though a good resource for parties facing destroyed/missing evidence, was in practice difficult to articulate and prove. All circuits imposed different standards, especially when it came to negligence and the duty issue. In the Third Circuit, for example, general negligence principles sufficed to establish a duty. Bethea v. Modern Biomedical Servs., Inc., 97-332 (La. App. 3d Cir. 11/19/97), 704 So. 2d 1227, 1233. The First Circuit, on the other hand, did not recognize negligent spoliation. Clavier v. Our Lady of the Lake Hosp. Inc., 2012-0560 (La. App. 1st Cir. 12/28/12), 112 So. 3d 881, 888.
A burning question unanswered by the Louisiana Supreme Court was, does Louisiana recognize a cause of action for negligent spoliation?
The Court answered the question last month in Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), 2015 WL 3972370. Seizing on several policy considerations, the Court answered: No cause of action exists for negligent spoliation of evidence, regardless of any alleged source of the duty, whether general or specific.
The Court's Policy Considerations and Justifications
- Tort deterrence - negligent spoliation is so unintentional that recognizing the tort would serve to penalize a party who was not aware of the potential wrongdoing.
- Compensation of victim - damages are too speculative.
- Societal justice - there would be increased costs on companies to retain evidence which would trickle down to insureds and result in higher premiums for everyone.
- Predictability - there is no predictability in requiring preservation for unknown litigation. Such a requirement would be too burdensome.
- Allocation of resources - derivative litigation will open the floodgates for lawsuits.
- Deference to the legislature - the Civil Code is written in broad terms, and it is up to the courts to determine the viability of certain causes of action.
Finally, the Court reasoned that litigants may seek alternative remedies, such as the adverse presumption, discovery sanctions, and a breach of contract action.
Perhaps the best practice going forward is to investigate early (if possible) and obtain an agreement that the person in possession of the evidence will preserve it. Failing a contract, there is still a cause of action for intentional spoliation of evidence: intentional destruction of evidence for the purpose of depriving opposing parties of its use.