Attorneys for Plaintiff Attorneys for defendant Attorneys for Amicus Curiae
Morris L. Klapper Thomas L. Davis Defense Trial Counsel of Indiana
G. R. Parish, Jr. Julia Blackwell Gelinas Thomas R. Schultz
Klapper Isaac & Parish Lucy R. Dollens Donald B. Kite, Sr.
Indianapolis, Indiana Locke Reynolds LLP Schultz & Pogue, LLP
Indianapolis, Indiana Carmel, Indiana
James D. Johnson
Rudolph Fine Porter & Johnson
Certified Question from the United States District Court
Southern District of Indiana, Indianapolis Division
The Honorable V. Sue Shields, Magistrate Judge
March 22, 2005
Pursuant to Indiana Appellate Rule 64, the United States District Court for the
Southern District of Indiana has certified, and we have accepted, the following questions
of Indiana law:
1. Does Indiana law recognize a claim for "first-party" spoliation of evidence; that is, if an alleged tortfeasor negligently or intentionally destroys or discards evidence that is relevant to a tort action, does the plaintiff in the tort action have an additional cognizable claim against the tortfeasor for spoliation of evidence?
2. If so, what are the elements of the tort, and must
a plaintiff elect between pursuing the spoliation claim and utilizing an evidentiary inference
against the alleged tortfeasor in the underlying tort action?
In her certification order, Judge Shields asserts that there is no controlling Indiana
precedent and that courts in other jurisdictions vary greatly.
The certified questions arise in a tort action by the plaintiff, Patricia Gribben,
for injuries sustained in a fall at a store owned and operated by
the defendant, Wal-Mart Stores, Inc. The plaintiff moved to amend her complaint
to add a claim for spoliation of evidence against the defendant for its
intentional or negligent failure to preserve a surveillance videotape which she alleges would
have been relevant to her tort claim.
The question is specifically limited to "first party" spoliation, as distinguished from "third
party" spoliation. The former refers to spoliation of evidence by a party
to the principal litigation, and the latter to spoliation by a non-party.
See generally Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223 (Cal. 1999).
The plaintiff asserts that Indiana should recognize an independent tort claim for intentional
first-party spoliation of evidence. While the certified question includes both negligent and
intentional destruction of evidence, the plaintiff here claims only intentional spoliation, which she
urges should be treated differently than negligent spoliation. In the Plaintiff's Brief,
she argues that spoliation and the underlying cause of action should be tried
together and, if the jury finds intentional spoliation related to a relevant issue,
the jury should be instructed to find for the plaintiff on that issue.
Plaintiff's Br. at 17. If the jury finds spoliation was negligent
rather than intentional, it would instead be given a negative inference instruction.
Id. In Plaintiff's Response Brief, however, she appears to present a slightly
different proposal, one not merely restricting the remedy to the relevant issue affected
by spoliated evidence but also urging that "damages for intentional spoliation should be
the identical compensatory damages recoverable in the underlying case" and that punitive damages
would also be recoverable. Plaintiff's Response Br. at 4.
The plaintiff contends that a tort of intentional spoliation arises from standard Indiana
jurisprudence regarding the existence of a duty of care, and that the tort
is needed to discourage the growing occurrence of spoliation and its erosion of
both the ability of courts to do justice and public confidence in legal
processes. She argues that existing sanctions are insufficient deterrence to the practice
of intentional destruction of evidence, and that any systemic burden upon courts and
juries that might result from recognizing this new tort would be overwhelmingly outweighed
by the importance of stopping cheating and assuring the availability of evidence to
enable the fact finder to make a fair and informed decision.
The defendant urges that Indiana's existing procedural and evidentiary safeguards are an adequate
deterrent without adopting a new tort. It also contends that recognizing a
new tort of spoliation would involve the speculative nature of harm and damages,
significantly increase costs of litigation, cause jury confusion, result in duplicative and burdensome
proceedings, be subject to abuse, and make collateral issues the focus of many
disputes. The Amicus Curiae, Defense Trial Counsel of Indiana, likewise claims that
recognition of this independent tort would likely result in undue burden upon the
judicial system, and warns of a resulting uncertainty and burden upon property owners
who must decide whether to preserve property that others may deem useful evidence,
the risk of erroneous liability determinations, and the possibility of endless or satellite
litigation in an already-crowded judicial system.
Already existing under Indiana law are important sanctions that not only provide remedy
to persons aggrieved, but also deterrence to spoliation of evidence by litigants and
their attorneys. It is well-established in Indiana law that intentional first-party spoliation
of evidence may be used to establish an inference that the spoliated evidence
was unfavorable to the party responsible. Cahoon v. Cummings, 734 N.E.2d 535,
545 (Ind. 2000) (involving a jury instruction permitting the inference); Underwood v.
Gale Tschuor Co., Inc., 799 N.E.2d 1122, 1134 (Ind. Ct. App. 2003) (same);
Porter v. Irvin's Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1364
(Ind. Ct. App. 1998) (permitting an evidentiary inference to resist summary judgment).
See generally Doug Cressler, Spoliation of Evidence, 36 Res Gestae 510 (1993).
Potent responses also exist under Indiana Trial Rule 37(B) authorizing trial courts to
respond to discovery violations with such sanctions "as are just" which may include,
among others, ordering that designated facts be taken as established, prohibiting the introduction
of evidence, dismissal of all or any part of an action, rendering a
judgment by default against a disobedient party, and payment of reasonable expenses including
attorney fees. We further note that attorneys involved in destruction or concealment
of evidence face penalties including disbarment. See Indiana Rules of Professional Conduct
Rules 3.1, 3.3, 3.4(a), 3.4(b), 8.4. In addition, the destruction or concealment
of evidence, or presentation of false testimony related thereto, may be criminally prosecuted
as a Class D felony for perjury or obstruction of justice. Indiana
Code §§ 35-44-1-7, 35-44-3-4.
Absent these sanctions, however, Indiana case law is inconsistent regarding whether one party
to a civil action may obtain the relief sought therein solely based on
the opposing party's intentional destruction of evidence. In 1941, this Court expressed
disfavor of such a claim, as did our Court of Appeals in 1991.
But two other cases from our Court of Appeals have favorably treated
such a claim.
Great American Tea Co. v. Van Buren, 218 Ind. 462, 33 N.E.2d 580
(1941) involved an appeal from a judgment for damages in a personal injury
vehicular collision in which the appellant claimed insufficient evidence that its driver was
acting within the scope of his employment when the collision occurred. This
Court affirmed based largely upon an evidentiary inference, noting that "[m]any of the
facts about which there is uncertainty were particularly within the knowledge of the
appellant and such a situation may give rise to an inference that if
these had been fully disclosed they would have been unfavorable." 218 Ind.
at 467, 33 N.E.2d at 581. Significant to the present certified question,
however, is the opinion's ensuing observation that "this rule will not be carried
to the extent of relieving a party of the burden of proving his
case." Id. Under this view, the spoliation doctrine warranted only an
evidentiary presumption and could not be the basis for awarding the relief sought
in the underlying case.
A product liability claimant's action against his employer for interference with prospective or
actual civil litigation by the spoliation of evidence was expressly rejected in Murphy
v. Target Products, 580 N.E.2d 687, 690 (Ind. Ct. App. 1991), where our
Court of Appeals concluded "that in Indiana there is no common law duty
on the part of an employer to preserve, for an employee, potential evidence
in an employee's possible third party action." Id. Its rejection of
the spoliation claim, however, was narrowly limited as to such actions against a
claimant's employer, as the court added:
We therefore hold that at least in the absence of an independent tort, contract, agreement, or special relationship imposing a duty to the particular claimant, the claim of negligent or intentional interference with the person's prospective or actual civil litigation by the
spoliation of evidence is not and ought not be recognized in Indiana.
Id. The court reasoned that to hold otherwise would "foster continuous litigation" and that, prior to receiving notice that they have something required in a civil action, a non-party "ought to have no legal concerns about potential evidence in his possession, absent any promises, contracts, statutes, or special circumstance." Id.
A limited spoliation tort remedy was permitted in Thompson v. Owensby, 704 N.E.2d
134 (Ind. Ct. App. 1998), trans. denied, which involved an action against the
alleged tort-feasor's liability insurance company for failing to preserve evidence. Identifying the
question as "whether an insurance company that loses evidence may be liable to
a third party claimant for damages attributable to the loss of the evidence,"
the Court of Appeals analyzed the question as one of common law duty,
placing particular emphasis on the fact that the insurance carrier "is in a
better position than the lay claimant to understand the significance of the evidence
and the need to maintain it," id. at 138, and that "the
carrier has the unique experience and ability to structure its practices to avoid
harm." Id. at 140. The court concluded that a third-party claimant
may assert a spoliation claim for damages for negligent or intentional conduct by
an insurance carrier, id., but expressly declined to address whether, outside of the
liability insurance context presented, there would be a duty to maintain evidence.
Id. at 138 n.2.
While not involving a separate tort action, intentional spoliation was the basis for
granting a default judgment on liability in Whitewater Valley Canoe Rental, Inc. v.
Franklin County Comm'rs, 507 N.E.2d 1001, 1008 (Ind. Ct. App. 1987), trans. denied.
Finding no abuse of discretion, the court affirmed a default judgment that
had been entered as a sanction for abusing, restricting, and obstructing discovery in
bad faith by either destroying documents or refusing to produce them. Thus,
while in the form of a discovery sanction, a claim of opposing party
intentional spoliation served to establish liability, although damages were then the subject of
a separate evidentiary hearing.
From its review of Murphy, Thompson, and a third case subsequently vacated,
See footnote the
United States District Court in
Reinbold v. Harris, No. IP 00-0587-C-T/G, 2000 WL
1693792 (S.D. Ind. Nov. 7, 2000) opined that
"[t]he independent tort of spoliation
(destruction) of evidence is recognized under Indiana law." Id. at *1.
Judge Tinder nevertheless dismissed the plaintiff's third-party spoliation claim, finding that the complaint
did not allege an independent tort, contract, agreement, or other special relationship imposing
upon the defendant a duty to the plaintiff to maintain the evidence (a
surveillance videotape), and that the harm in erasing the videotape was not reasonably
foreseeable to the defendant.
In light of Indiana's inconclusive case law, we agree with Judge Shields that there is no controlling Indiana precedent as to the questions presented.
Several jurisdictions, including West Virginia, Alaska, Montana, the District of Colu
mbia, Illinois, New
Mexico, and Ohio, recognize evidence spoliation as a cognizable tort. Hannah v.
Heeter, 584 S.E.2d 560 (W. Va. 2003) (granting stand-alone tort status for intentional
spoliation and for some third-party negligent spoliation, but rejecting first-party negligent spoliation as
a stand-alone tort); Nichols v. State Farm Fire & Cas. Co., 6 P.3d
300 (Alaska 2000) (acknowledging independent tort claims for first-party and third-party intentional spoliation
but rejecting tort status for first-party negligent spoliation); Oliver v. Stimson Lumber Co.,
993 P.2d 11 (Mont. 1999) (recognizing tort action for negligent or intentional third-party
spoliation, but not for first-party spoliation); Holmes v. Amerex Rent-A-Car, 180 F.3d 294
(D.C. Cir. 1999) (recognizing tort for negligent third-party spoliation); Boyd v. Travelers Ins.
Co., 652 N.E.2d 267 (Ill. 1995) (permitting separate tort claim for negligent spoliation
against principal defendant's liability insurer); Coleman v. Eddy Potash, Inc., 905 P.2d
185 (N.M. 1995) (recognizing tort liability for intentional spoliation, but not one for
negligent spoliation); Smith v. Howard Johnson Co., 615 N.E.2d 1037 (Ohio 1993) (recognizing
tort action for intentional first-party and third-party spoliation).
But several other jurisdictions considering the issue, among them Florida, Mississippi, Arkansas, California,
Iowa, Texas, Alabama, Georgia, Kansas, and Arizona have rejected spoliation as an independent
tort. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. Dist.
Ct. App.) (rejecting tort action for first party spoliation), review granted, 861 So.
2d 430 (Fla. 2003); Richardson v. Sara Lee Corp., 847 So. 2d 821
(Miss. 2003) (rejecting negligent spoliation as an independent tort); Dowdle Butane Gas Co.
v. Moore, 831 So. 2d. 1124 (Miss. 2002) (rejecting independent cause of action
for intentional first-party or third-party spoliation); Rosenblit v. Immerman, 766 A.2d 749 (N.J.
2001) (rejecting spoliation as a new tort but permitting similar remedy upon theory
of fraudulent concealment); Goff v. Harold Ives Trucking Co., Inc., 27 S.W.3d 387
(Ark. 2000) (rejecting tort of first-party intentional spoliation); Temple Cmty. Hosp. v. Superior
Court, 976 P.2d 223 (Cal. 1999) (rejecting tort of intentional third-party spoliation); Meyn
v. State, 594 N.W.2d 31 (Iowa 1999) (rejecting tort claim for third-party negligent
spoliation); Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998) (rejecting
tort remedy for intentional first-party spoliation); Trevino v. Ortega, 969 S.W.2d 950 (Tex.
1998) (refusing to recognize intentional or negligent spoliation as an independent tort); Christian
v. Kenneth Chandler Constr. Co., Inc., 658 So. 2d 408 (Ala. 1995) (declining
to recognize tort action for first party spoliation); Gardner v. Blackstone, 365 S.E.2d
545 (Ga. Ct. App. 1988) (refusing claim for first party spoliation); Koplin v.
Rosel Well Perforators, Inc., 734 P.2d 1177 (Kan. 1987) (generally rejecting tort of
spoliation of evidence); La Raia v. Superior Court, 722 P.2d 286 (Ariz. 1986)
(declining to recognize new tort of intentional spoliation against first party).
Courts uniformly condemn spoliation. "[I]ntentional destruction of potential evidence in order to
disrupt or defeat another person's right of recovery is highly improper and cannot
be justified." Coleman, 905 P.2d at 189. "The intentional or negligent
destruction or spoliation of evidence cannot be condoned and threatens the very integrity
of our judicial system. There can be no truth, fairness, or justice
in a civil action where relevant evidence has been destroyed before trial."
Oliver, 993 P.2d at 17. "Destroying evidence can destroy fairness and justice,
for it increases the risk of an erroneous decision on the merits of
the underlying cause of action." Cedars-Sinai, 954 P.2d at 515. "Destroying
evidence can also increase the costs of litigation as parties attempt to reconstruct
the destroyed evidence or to develop other evidence, which may be less accessible,
less persuasive, or both." Id.
It is thus not surprising that an independent tort remedy for spoliation of
evidence began to be recognized. Smith v. Superior Court, 198 Cal. Rptr.
829 (Cal. Ct. App. 1984); Velasco v. Commercial Bldg. Maint. Co., 215 Cal.
Rptr. 504 (Cal. Ct. App. 1985). In the subsequent intervening years, however,
California came to question and ultimately reject this approach. In Cedars-Sinai, the
California Supreme Court comprehensively addressed the issue, finding that the acknowledged harms resulting
from the intentional destruction of evidence are "not enough to justify creating tort
liability for such conduct," and declaring that "[w]e must also determine whether a
tort remedy for the intentional first party spoliation of evidence would ultimately create
social benefits exceeding those created by existing remedies for such conduct, and outweighing
any costs and burdens it would impose." 954 P.2d at 515.
The opinion then more fully discussed the dangers of "creating new torts to
remedy litigation-related misconduct" and of adopting "a remedy that itself encourages a spiral
of lawsuits." Id. It also compared spoliation to other forms of
litigation-related misconduct, such as perjury, for which there is no tort remedy, and
expressed its preference for policies of evidentiary inference, discovery sanctions, criminal penalties, civil
monetary, contempt, and issue sanctions over derivative actions. The Cedars-Sinai court also
focused on the "uncertainty of the fact of harm in spoliation cases."
Id. at 518.
[E]ven if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable to the spoliator, there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim's favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation.
The California Supreme Court also noted and discussed other factors that it believed
weighed against the creation of a spoliation tort remedy: the "risk of erroneous
determinations of spoliation liability," "the indirect costs by causing persons or entities to
take extraordinary measures to preserve for an indefinite period documents and things of
no apparent value solely to avoid the possibility of spoliation liability if years
later those items turn out to have some potential relevance to future litigation,"
the costs and burdens of "litigating meritless spoliation actions," and the "significant potential
for jury confusion and inconsistency." Id. at 519-20.
Concluding that the "incremental additional benefits a tort remedy might create" are outweighed
by other policy considerations and costs, the Cedars-Sinai court denied a tort remedy
for first-party intentional spoliation of evidence. Id. at 521. One year
later, the same court similarly disapproved a tort remedy for intentional spoliation by
a third party. Temple Cmty. Hosp., 976 P.2d at 233.
As discussed above, several other jurisdictions have likewise decided to disallow an independent
tort for evidence spoliation. In summarizing its decision, t
he Texas Supreme Court
This Court treads cautiously when deciding whether to recognize a new tort. 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 averse 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. We thus
decline to recognize evidence spoliation as an independent tort.
Trevino, 969 S.W.2d at 951-52. T he Mississippi Supreme Court observed, "as the Califo rnia courts have leaned after 14 years of experience with this tort, any benefits obtained by recognizing the spoliation tort are outweighed by the burdens imposed." Richardson, 847 So. 2d at 824.
Notwithstanding the important considerations favoring the recognition of an independent tort of spoliation
by parties to litigation, we are persuaded that these are minimized by existing
remedies and outweighed by the attendant disadvantages. We thus determine the common
law of Indiana to be that, if an alleged tortfeasor negligently or intentionally
destroys or discards evidence that is relevant to a tort action, the plaintiff
in the tort action does not have an additional independent cognizable claim against
the tortfeasor for spoliation of evidence under Indiana law.
It may well be that 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. But the certified
questions are directed only to first-party spoliation, and we therefore decline to address
the issue with respect to third-party spoliation.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.