Thursday, July 26, 2007

Spoliation of Evidence Can Spoil Litigation

Spoliation of Evidence Can Spoil Litigation, Daily Bus. Rev., July 2, 2007, discusses the cause of action for spoliation of evidence in Florida.

Interesting, I thought, but what about Washington?

I did a quick search in Washington Practice. (The books are at KFW80 in the Reference Area, but I'm in my living room, so I used the WAPRAC database in Westlaw.)

Spoliation of evidence is a relatively new tort which Washington has yet to recognize.
David K. DeWolf & Keller W. Allen, 16A Washington Practice: Tort Law & Practice sec. 21.1.

Later (sec. 21.31) DeWolf and Allen discuss spoliation more. Someone did argue for a cause of action but the court appeals found that the trial court properly refused to give the instruction. Henderson v. Tyrrell, 80 Wash. App. 592, 910 P.2d 522 (1996).

So there you go. But the fact that it hasn't been recognized here yet doesn't mean that it won't be -- it's good to be aware of potential developments. DeWolf and Allen say the cause of action is recognized (in some form) in CA, FL, KS, AK, NJ, IL, and OH. And they refer us to Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351 (1995), for more .

Of course, whether or not there is a tort, spoliation can lead to other problems.

For one thing, if there's spoliation (the willful and improper destruction of evidence), then the opposing party can argue that the evidence would have been damaging to the person who destroyed it. The court may also prevent the party that destroyed evidence from presenting other evidence. Karl B. Tegland, Washington Practice: Evidence sec. 402 (3).

Spoliation can also earn you discovery sanctions. Karl B. Tegland, Washington Practice: Civil Procedure sec. 21.33. Tegland writes:
In Henderson v. Tyrrell, the court was relatively forgiving, but the holding should not lull parties or attorneys into a sense of complacency. The holding simply reaffirms the trial court's broad discretion and does not require trial courts to treat similar cases in a similar manner in the future. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.

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