Indiana Supreme Court Refuses to Recognize Spoliation of Evidence as an Independent Tort
April, 2005
The Indiana Supreme Court has held that the negligent or intentional destruction or discarding of evidence relevant to a tort action does not give rise to an independent claim for spoliation of evidence. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005).
Facts
Plaintiff sued Wal-Mart in the U.S. District Court for the Southern District of Indiana for injuries she sustained when she fell at its store. When plaintiff moved to amend her complaint to add a claim for spoliation of evidence against Wal-Mart for its alleged intentional or negligent failure to preserve a surveillance videotape which could have been relevant to her tort claim, the federal court certified to the Indiana Supreme Court the question of whether Indiana law recognized such a cause of action.
Analysis
The Indiana Supreme Court held that Indiana law does not recognize a claim for “first party” negligent or intentional spoliation of evidence. It reached this conclusion by reviewing Indiana case law regarding spoliation of evidence, which was previously inconsistent. For example, in Great American Tea Co. v. Van Buren, 33 N.E.2d 580 (1941), the Indiana Supreme Court held that a first party claim for spoliation could be used to establish an inference that the spoliated evidence was unfavorable to the responsible party and was not to be used as a basis for awarding relief in the underlying case. However, in Murphy v. Target Products, 580 N.E.2d 687 (Ind. Ct. App. 1991), the Indiana Court of Appeals held that there is no common law duty on the part of an employer to preserve potential evidence for an employee in that employee's possible lawsuit. Conversely, in Thompson v. Owensby, 704 N.E.2d 134 (Ind. Ct. App. 1998), the Indiana Court of Appeals held that a third-party claimant may assert a spoliation claim for damages for negligent or intentional conduct by an insurance carrier, but expressly declined to address whether, outside of the liability insurance context, there would be a duty to maintain evidence. “In light of Indiana's inconclusive case law,” the Court wrote, “we agree … that there is no controlling Indiana precedent as to the question[] presented.”
The Gribben court then looked to the law of other jurisdictions which have squarely addressed the issue. It found particularly persuasive the reasoning of the California Supreme Court in Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511 (1998), which rejected a tort remedy for intentional first party spoliation on the ground that the harms resulting from the intentional destruction of evidence are not sufficiently severe so as to justify creating independent tort liability for such conduct. Moreover, the Cedars-Sinai court reasoned, there are already remedies in place to address spoliation without litigation on that issue alone, including evidentiary inferences, discovery sanctions, criminal penalties, civil monetary penalties, and contempt-of-court sanctions. In adopting the Cedars-Sinai approach, the Gribben court relied heavily on the fact that “[a]lready existing under Indiana law are important sanctions that not only provide remedy to persons aggrieved, but also deterrence to spoliation by litigants and their attorneys,” such as a jury instruction and inference that the spoliated evidence was unfavorable to the party responsible; discovery sanctions, including a default judgment and payment of reasonable attorney fees; disbarment for an attorney who destroys or discards evidence; and criminal prosecution for perjury or obstruction of justice. The Gribben court wrote:
While the law must adjust to meet society's changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system. We are especially adverse to creating a tort that would only lead to duplicative litigation, encouraging inefficient relitigation of issues better handled within the context of the core cause of action.” (Gribben, 824 N.E.2d at 355 (citations omitted))
The court left the door open for third-party spoliation claims, stating, “[i]t may well be that the fairness and integrity of outcome and the deterrence of evidence destruction may require an additional tort remedy when evidence is destroyed or impaired by persons that are not parties to litigation and thus not subject to existing remedies and deterrence.”
Learning Point:
West Virginia, Alaska, Montana, District of Columbia, Illinois, New Mexico and Ohio recognize evidence spoliation as an independent tort. Several other jurisdictions including Florida, Mississippi, Arkansas, California, Iowa, Texas, Alabama, Georgia, Kansas and Arizona have rejected spoliation as a cognizable tort. However, regardless of the state, intentional or negligent destruction or spoliation of evidence should be avoided at all costs as it threatens the integrity of the judicial system, increases the risk of an erroneous decision on the merits of the case and can increase costs of litigation by necessitating efforts to reconstruct the destroyed evidence.•
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