A recent decision by the Kansas Supreme Court in Superior Boiler Works, Inc. v. Kimball, 259 P.3d 676 (Kan. 2011) [PDF] highlights the issue of whether or not a party can be held independently liable for the tort of spoliation. As we all know, a court has the power to grant a wide range of sanctions and/or relief based on a spoliation charge — a charge that a party who had control over key evidence in a case lost or destroyed that evidence. Indeed, a court can give a party a slap on the wrist, an adverse inference, or even dismiss the complaint of a plaintiff or strike the answer of a defendant.
However, some jurisdictions have adopted spoliation of evidence as an independent tort – a cause of action for spoliation. Not all jurisdictions have done this – in fact, the Kimball Court held that Kansas has not adopted such a theory.
What’s the law in your state? South Carolina doesn’t acknowledge spoliation as giving rise to independent actions, either. Silvestri v. Gen. Motors Corp., 271 F.3d 583 (4th Cir. 2001). A good starting point for determining the law in your jurisdiction is ALR’s “Negligent Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable” by Benjamin J. Vernia, which can be found at 101 A.L.R.5th 61.
As for the spoliation we are all familiar with, some states have different rules about actionable spoliation depending on whether the destruction was negligent or willful. A good source of information about the “Intentional spoliation of evidence, interfering with prospective civil action, as actionable” can be found at 70 A.L.R.4th 984.
It’s important to know that, when you or your client is responsible for the loss of evidence, the story may not end with a slap on the wrist–you may be facing an amended complaint or counterclaim that could open your client up to additioanl liability.