Spoliation of Evidence: How Should A Court Address Such Conduct?
December, 2002
Massachusetts highest court declines to recognize an independent cause of action for spoliation of evidence in Fletcher v. Dorchester Mut. Ins. Co., 773 N.E.2d 420 (2002).
Facts
Fletcher involved a fire in a leased house. Three of the tenant’s children died and two sustained severe permanent injuries. Dorchester Mutual Insurance Company, the landlord’s insurer, retained a cause and origin expert, Richard Splaine. Splaine “removed certain wiring components and fixtures from the remains of the building approximately two weeks after the fire.”
The tenant-parents commenced various lawsuits. The case at bar involved the lawsuit filed “against Dorchester and Splaine, alleging counts of negligence, “negligent spoliation of evidence,” and “intentional spoliation of evidence” against each of them.” Dorchester and Splaine moved to dismiss the complaint for failure to state a claim. Basically, defendants argued “that Massachusetts does not recognize an action in tort for ‘spoliation of evidence.’” The trial court agreed and dismissed the complaint. Plaintiffs appealed. Ultimately, the Supreme Judicial Court of Massachusetts, the highest court in the Commonwealth, affirmed the decision dismissing the complaint against Dorchester Mutual and Splaine.
Analysis
The Court began its discussion by acknowledging that neither the Legislature nor the court has ever explicitly recognized an independent cause of action for spoliation of evidence. The Court noted that most jurisdictions “have declined to recognize such a cause of action,” and decided to follow the majority position.
Although the Court was unwilling to recognize an independent cause of action for spoliation of evidence, it acknowledged that an analysis was required to determine whether there already existed a duty and claim upon which a party could seek recovery from another party for spoliation of evidence. The Court stated that a nonparty (someone not a party to a litigation) is under no automatic “duty to preserve evidence for use by others.” This holds true even if the party knows the evidence may be used by others in litigation.
However, there are a circumstances where a duty may be imposed upon a nonparty to preserve evidence. For example, if the nonparty receives a subpoena duces tecum, and the nonparty has possession, custody and/or control of the evidence, the nonparty is under a duty to preserve the evidence. Failure to preserve the evidence would be subject to contempt of court. A nonparty may also “agree to preserve an item of evidence and thereby enter into an enforceable contract.” Failure to preserve the evidence would be subject to a breach of contract claim.
The Court also noted that it “implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved) have a duty to preserve evidence for use by others who will also be involved in that litigation” and are subject to sanctions if they fail to do so.
Where evidence has been destroyed or altered by persons who are parties to the litigation, or by persons affiliated with a party (in particular, their expert witnesses), and another party’s ability to prosecute or defend the claim has been prejudiced as a result, we have held that a judge may exclude evidence to remedy that unfairness. In doing so, we have gone farther than other jurisdictions, many of which address spoliation merely by permitting an adverse inference against the party responsible for the spoliation. Thus, once “a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action,” we have imposed a duty to preserve such evidence in the interests of fairness.
Again, however, in recognizing such a duty, we simultaneously crafted the remedy for spoliation within the context of the underlying civil action. Sanctions in that action are addressed to the precise unfairness that would otherwise result. Thus, for example, an expert’s testimony (or portions thereof) may be excluded so that the expert would not have the unfair advantage of posing as “the only expert with first-hand knowledge” of the item. Such a sanction “should go no further than to preclude tainted testimony.” The imposition of such a remedy must also take into account the party responsible for the spoliation. Not only do we impose the sanction of excluding testimony, but we do so recognizing that such exclusion of testimony may be dispositive of the ultimate merits of the case, thereby imposing the ultimate sanction on the party responsible for the spoliation.
Learning Point:
The law of spoliation of evidence is still developing. Even if there is no independent cause of action for spoliation in a certain jurisdiction, other avenues of relief may still be available.
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