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Vol. 2010-02 February, 2010

Evidence - Spoliation Defined; Elements of Proof Required

In law, spoliation of evidence is the intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding. It is a criminal act in the United States under Federal and most state laws. Spoliation has two consequences: first the act is criminal by statute and may result in fines and incarceration for the parties who engaged in the spoliation. Secondly, case law has held that proceedings which might have been altered by the spoliation may be interpreted under a spoliation inference. Accordingly, the finder of fact may draw a negative evidentiary inference in a civil or criminal proceeding, whereby a party's destruction of a document or thing that is relevant to the issue or cause, may be construed in as strong a light as possible against the spoliator and in favor of the opposing party.

The Fourth Circuit has defined spoliation as "the destruction or material alteration of evidence or . . . the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir.2001). The court may impose sanctions for spoliation when it finds some degree of fault, and the court has broad discretion in choosing an appropriate sanction. Id. The sanctions may be imposed "`both for the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.'" Id. (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)).

Permissible sanctions for spoliation include an instruction to the jury allowing it to infer that the destroyed evidence would have been unfavorable to the party that destroyed it. See Buckley v. Mukasey, 538 F.3d 306, 322-23 (4th Cir. 2008); Vodusek, 71 F.3d at 156. The Fourth Circuit has ruled that for such an adverse inference instruction to be given there must be a showing "`that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.'"

Buckley, 538 F.3d at 323 (quoting Vodusek, 71 F.3d at 156). Even if this two-prong showing is made, the trial court retains the discretion whether or not to give an adverse inference instruction. See Buckley, 538 F.3d at 323; Vodusek, 71 F.3d at 156. POWELL v. TOWN OF SHARPSBURG, 591 F.Supp.2d 814 (E.D. N.C. 2008).

Spoliation is often an issue in personal injury claims, for loss or harm by a defective product or procedure, all records of which were then discarded or lost. Medical records cases are a frequent source of such claims. In construction cases, critical evidence may be "lost" in concrete. In such event, the defendant manufacturer, distributor, or contractor may move to dismiss the case on the basis of spoliation, inasmuch as the plaintiff may be unable to sustain the burden of proof, and cannot produce the lost product or component.

The Supreme Court of Ohio recently considered spoliation, and held: { 15} Similarly, to show spoliation of evidence, the "proponent must first establish that (1) the evidence is relevant, (2) the offending party's expert had an opportunity to examine the unaltered evidence, and (3) even though the offending party was put on notice of impending litigation, this evidence was intentionally or negligently destroyed or altered without providing an opportunity for inspection by the proponent." Simeone v. Girard City Bd. of Edn., 171 Ohio App.3d 633, 2007-Ohio-1775, 872 N.E.2d 344, at 69. The burden of proof falls on the party alleging spoliation. State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354.


"Make everything as simple as possible, but not simpler."
Albert Einstein

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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