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Gribben v. Wal-Mart Stores3/22/2005
e 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 " 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.
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.
Id.
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 addit
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