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Gribben v. Wal-Mart Stores3/22/2005
lso 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 disbarrment. 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 ยงยง 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 " 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. Und
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