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Dowdle Butane Gas Company12/5/2002
argues that spoliation is unlike perjury in that when a witness commits perjury, the opposing attorney has the opportunity to impeach the witness. The California Supreme Court in Temple acknowledged this distinction, yet continued to hold to the interest in preventing "the greater harm of subjecting parties, witnesses, and the courts to unending litigation over the conduct and outcome of a lawsuit." Temple, 976 P.2d at 230.
. Moore also argues that Mississippi recognizes torts similar to spoliation, namely malicious prosecution, a form of litigation-related misconduct, and malicious interference with business relations. The Smith court analogized a plaintiff's probable expectancy of recovery to the economic interest protected by the tort of intentional interference with prospective economic relations. Smith, 198 Cal. Rptr. at 836. However, this analogy is specious. "Calling the plaintiff's interest a 'probable expectancy' instead of a 'lost lawsuit' does not create actual harm - either way the trier of fact has no way of determining if the spoliation has truly injured anyone." Jonathan Judge, Comment, Reconsidering Spoliation: Common-Sense Alternatives to the Spoliation Tort, 2001 Wis. L. Rev. 441, 455 (2001). Furthermore, "a prospective economic relationship is quantifiable in a manner which a general litigation interest can almost never be" as the business background of the transaction usually allows injury and damages to be determined with at least reasonable certainty. Id.
C.
. We refuse to recognize a separate tort for intentional spoliation of evidence against both first and third party spoliators. We find persuasive the opinions of the California Supreme Court in Cedars-Sinai and Temple. Obviously, the preservation of items which might be relevant evidence in litigation is desirable. Nevertheless, the foundation of an inquiry into whether to create a tort remedy for intentional spoliation of evidence must be based on the recognition that "using tort law to correct misconduct arising during litigation raises policy considerations not present in deciding whether to create tort remedies for harms arising in other contexts." Cedars-Sinai, 954 P.2d at 515.
. Chief among these concerns is the important interest of finality in adjudication. We should not adopt a remedy that itself encourages a spiral of lawsuits, particularly where sufficient remedies, short of creating a new cause of action, exist for a plaintiff. Closely akin to the interest in finality of litigation is the concern espoused by the Texas Supreme Court in Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998):
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.
. Furthermore, weighing against recognition of the tort is the uncertainty of the fact of harm. As the Arkansas Supreme Court stated in Goff v. Harold Ives Trucking Co., 27 S.W.3d 387 (Ark. 2000), "the question goes not only to the amount of damages caused by the destruction of evidence, but also to the very existence of injury." Id. at 390. And, finally, the costs to defendants and courts would be enormous, particularly from the risks of erroneous determinations of liability due to the uncertainty of the harm and from the extraordinary measures required to preserve for indefinite periods items for the purpose of avoiding potential spoliation liab
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