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Gribben v. Wal-Mart Stores3/22/2005
er 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, 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 " 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, ag
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