 2008

SPOLIATION REMEDIES
By
Kristen M. Johnson, Esq.
Schwartz Semerdjian Ballard & Cauley, LLP
Published: 05.01.2014
Five years into contentious litigation that has been up on appeal twice on pretrial issues,
your client is served with special interrogatories from the new counsel brought in by the
opposition seeking to discover the steps your client took to preserve its evidence four
years and two law firms prior to your representation. Were the computer hard drives
preserved? Was a litigation hold letter ever distributed to the key employees? What
steps were taken by your client’s previous counsel to ensure adherence with electronic
discovery requests? If there were some missteps with document preservation, what are
the potential consequences?

These are just a handful of questions that might arise when the notion of evidence
destruction, commonly referred to as spoliation, is raised in litigation. Under California
law, “spoliation of evidence” is the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence, in pending or future
litigation. Kearney v. Foley & Lardner, LLP (9th Cir. 2009) 590 F.3d 638 (applying California
law). Spoliation is not a new problem in civil litigation. The destruction may be negligent,
willful, or reckless. It could occur under the watch and care of a party, non-party or
counsel. From shredding documents to deleting electronic files, the manner of spoliation
can vary. However, the effect of destruction of evidence is that it can destroy fairness
and justice, increasing the risk of erroneous decisions and possibly increasing litigation
costs as parties attempt to reconstruct what is no longer readily available. Further,
spoliation offends the notion of fair play and undermines the adversarial system by
violating the spirit of liberal discovery.
In response to spoliation, courts have developed several remedies against spoliators
including adverse inference jury instructions, monetary or evidentiary sanctions, criminal
penalties and possibly a separate spoliation tort. The availability of these remedies varies
across jurisdictions and is often discretionary. This article discusses the potential
remedies available in California when spoliation occurs. See recentb 127k houston

Spoliation As An Independent Tort?

California was the first state to recognize the independent tort of spoliation. In Smith v.
Superior Court (2d Dist. 1984) 151 Cal.App.3d 491 (disapproved of by Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal.4th 1, the court for the first time acknowledged that
a cause of action may be stated for intentional destruction of evidence by a defendant in
an underlying action. The identified elements of intentional spoliation include: (1) pending
or probable litigation involving the plaintiff; (2) knowledge by the defendant of the
existence or likelihood of litigation; (3) intentional “acts of spoliation” on the part of
defendant designed to disrupt plaintiff’s case; (4) disruption of plaintiff’s case; and (5)
damages proximately resulting therefrom. Shortly after Smith, in Velasco v. Commercial
Bldg. Maintenance Co. (2d Dist. 1985) 169 Cal.App.3d 874, the court recognized that
negligent spoliation by a third party could be actionable under appropriate circumstances
relying upon Smith and earlier dicta in Williams v. State of California (1983) 34 Cal.3d
18. Although not finding the facts of the particular case actionable, the Velasco court
analogized negligent spoliation to the recognized tort of negligent interference with
prospective co dvantage. 8nfpcr
In 1998, the California Supreme Court overruled Smith and specifically held than an
independent tort of intentional spoliation is not cognizable against a party-defendant in
the underlying case where the spoliation is or reasonably should have been discovered
before the trial or other decision on the merits of the underlying cause of action. Cedars-
Sinai Medical Center v. Superior Court (1998) 18 Cal. 4th 1. In Cedars-Sinai, the court
offered detailed policy reasons for its refusal to recognize an action against a defendant
in the primary action, including: strong policy favoring the use of nontort remedies to
punish and correct litigation misconduct; prohibition against attacking adjudication on the
ground that evidence was falsified or destroyed; uncertainty of harm in spoliation cases
and difficulty of proof; direct and indirect costs of risks or erroneous determinations of
spoliation harm to private parties and cost to defendants and courts litigating meritless
actions; significant potential for jury confusion and inconsistency where underlying and
spoliation claims are tried jointly; and duplicative proceedings without avoidance of the
potential for inconsistent results where the actions are pursued separately with
requirement of a “retrial within a trial” burdensome both to parties and courts. Just as
there is no tort for intentional spoliation committed by a party to underlying litigation,
likewise, there is no separate tort cause of action for negligent spoliation of
evidence. Given California’s non-recognition of spoliation as an independent tort,
practitioners should look traditional nontort litigation remedies for spoliation. Hernandez
v. Garcetti (1998) 68 Cal. App. 4th 675.
Adverse Inference Jury Instructions
The doctrine of spoliation conceptually encompasses both negligent and deliberate
destruction of relevant evidence by a party to litigation. However, California appears to
have limited the adverse presumption jury instruction that follows destruction or spoliation
of evidence only to situations involving willful destruction or suppression. California trial
courts are permitted to instruct juries with a “spoliation inference” that may be used where
a litigant is found to have willfully destroyed or concealed evidence during the underlying
litigation. See Cedars-Sinai Center, 18 Cal.4th at 12. Evidence Code section 413 provides
in pertinent part:
In determining what inferences to draw from the evidence or facts in the case against a
party, the trier of fact may consider, among other things, the party’s failure to explain or
to deny by his testimony such evidence or facts in the case against him, or his willful
suppression of evidence relating thereto, if such be the case.

The Judicial Council of California Advisory Committee on Civil Jury Instructions provides
under instruction 204 that the jury may consider whether one party intentionally concealed
or destroyed evidence. If the jury decides that a party did so, the jury may decide that the
evidence would have been unfavorable to that party. It is prejudicial error to instruct the
jury on wilful suppression of evidence when there is no evidence to support the
instruction. County of Contra Costa v. Nulty (1965) 237 Cal.App.2d 593, 598.
The policy of limiting the adverse inference instruction to intentional acts of destruction
flows from the rationale that only intentional destruction supports the inference that the
destruction amounts to an admission by conduct of the weaknesses of the case. The
implication is that there is a consciousness of guilt that has the potential to saturate the
entire case. While some jurisdictions hold that the negligent destruction of relevant
evidence can be sufficient to give rise to the spoliation inference, California only permits
the instruction with willful destruction or suppression.

Sanctions
Courts determine the proper sanction for destruction or suppression of relevant evidence
on a case-by-case basis. Unigard Security Ins. Co. v. Lakewood Eng. & Mfg. Corp. (9th Cir.
1992) 982 F.2d 363, 368. The following factors are generally considered in choosing an
appropriate sanction: the degree of fault of the party who altered or destroyed the
evidence; the degree of prejudice suffered by the opposing party; and whether a lesser
sanction will avoid substantial unfairness to the opposing party and, where the offending
party is seriously at fault, will serve to deter such conduct by others in the future. Prac.
Guide Fed. Civ. Proc. Before Trial (Nat Ed.) Ch. 11(I)-C.
The California Supreme Court instructs that spoliation constitutes a misuse of the
discovery process that is subject to a comprehensive range of punishment, including
monetary, issue, evidentiary, and terminating sanctions. See e.g., Cal Code Civ. Proc §§
2023.010(3), 2023.030(a) to (d); Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th
1, 12. A terminating sanction may be appropriate in the first instance without a violation
of prior court orders in egregious cases of intentional spoliation of evidence. R.S. Creative,
Inc. v. Creative Cotton Ltd. (1999) 75 Cal.App.4th 486, 497. Some jurisdictions have found
that once the duty to preserve evidence has attached, counsel’s failure to issue a written
litigation hold letter to a client constitutes gross negligence for sanctions purposes,
“because it is likely to result in destruction of relevant information.” Pension Committee of
Univ. of Montreal Pension Plan v. Banc of America Securities, LLC (S.D. NY 2010) 685
F.Supp.2d 456, 466. The court may exclude related or derivative evidence offered by a
party who has destroyed evidence while under a duty to preserve it. Uniguard Security
Ins. C., 982 F.2d 363, 368.
CONCLUSION
If placed in the situation where evidence may have been destroyed, it is a good idea to
get ahead of the situation as soon as possible. Recognizing that the implications of
spoliation in California litigation could range from various sanctions (including terminating
sanctions) to adverse jury instructions is important in advising clients about the
significance of document preservation in the first place. If brought on as new counsel on
a pending matter, consider issuing a litigation hold letter to your client to be sure that
these issues are addressed. It may not be too late to exercise these cautions to preserve
documents and it could mean avoiding steep consequences.

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APRIL 19, 2010 Preservation, Spoliation, and Adverse Inferences – a view from the Southern District o

On February 18, 2010, the Hon. Lee H. Rosenthal of the Southern District of Texas issued an opinion of
equal significance, in Rimkus Consulting Group, Inc. v. Cammarata, that will also be cited often in cases
this year and beyond.1 It is also significant in light of Judge Rosenthal’s position as Chair of the
Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. In
circumstances that are both similar and dissimilar to Pension Committee decision, Judge Rosenthal
confronts the difficult issues of spoliation of evidence and sanctions. Unlike the facts in Pension
Committee, however, the Texas court finds that there was deliberate spoliation of evidence. Notably,
Judge Rosenthal imposes the same sanction of a permissive adverse inference instruction against the
spoliators of evidence, albeit for different reasons and with a different jury instruction. The pertinent2
analysis of the court focuses on (1) ascertaining when the deletion of evidence becomes spoliation, and
(2) determining whether the spoliation in this case merits an adverse inference instruction. Lessons from
Rimkus The facts of Rimkus seem straight out of Jerry Maguire: a top executive, inspiring manifesto in
hand, leaves his company with a few other employees to start a competing enterprise. Initially, the
exemployees sought a declaratory judgment that their noncompetition and nonsolicitation agreements
with their former employer, Rimkus Consulting Group, were unenforceable. Rimkus then sued the
exemployees for breach of these agreements, as well as use of trade secrets and proprietary
information. See id. at *2. In this action, Rimkus alleges that defendants (the ex-employees) spoliated
evidence and moves for sanctions against them. The spoliation allegations include “destroying evidence,
failing to 1 Rimkus Consulting Group, Inc. v. Cammarata, No. H-07-0405, 2010 WL 645253 (S.D. Tex. Feb.
19, 2010). 2 The 144-page opinion addresses other aspects of the case that are not relevant to the
preservation and sanctions discussion. 2 preserve evidence after a duty to do so had arisen, lying under
oath, failing to comply with court orders, and significantly delaying or failing to produce requested
discovery.” As outlined below, practitioners and courts should review the decision for its analysis as
much as its conclusions. (1) Overview of challenges presented by preservation obligations in an
electronic age The prologue to the decision is arguably the most significant part of the opinion as Judge
Rosenthal seeks to address the “grave” concern that spoliation and sanctions motions essentially
threaten to derail the civil discovery process. Judge Rosenthal, in the context of explaining the analytical
framework to be applied in examining spoliation allegations, stresses that (a) there are no litmus tests or
“negligence per se” rules that can be quickly applied in this area, and (b) what a party must do to
preserve information is proportional to the case at hand: [A]pplying [the general rules regarding
preservation] to determine when a duty to preserve arises in a particular case and the extent of that
duty requires careful analysis of the specific facts and circumstances. It can be difficult to draw bright-
line distinctions between acceptable and unacceptable conduct in preserving information and in
conducting discovery, either prospectively or with the benefit (and distortion) of hindsight. Whether
preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in
turn depends on whether what was done—or not done—was proportional to that case and consistent
with clearly established applicable standards. FN8 As Judge Scheindlin pointed out in Pension
Committee, that analysis depends heavily on the facts and circumstances of each case and cannot be
reduced to a generalized checklist of what is acceptable or unacceptable. Id. at *6 (emphasis
added)(footnote 8 in original text cited THE SEDONA PRINCIPLES: SECOND EDITION, BEST PRACTICES
RECOMMENDATIONS & PRINCIPLES FOR ADDRESSING ELECTRONIC DOCUMENT PRODUCTION 17 cmt.
2.b. (2007) (“Electronic discovery burdens should be proportional to the amount in controversy and the
nature of the case. Otherwise, transaction costs due to electronic discovery will overwhelm the ability to
resolve disputes fairly in litigation.”)) Before proceeding to the remainder of the opinion, Judge
Rosenthal also recognized that “sanctions (as opposed to other remedial steps) require some degree of
culpability.” Id. (1) When deletion of evidence becomes spoliation Spoliation is the destruction or the
significant and meaningful alteration of evidence. Id. at *5. The routine deletion of electronically stored
information transforms into spoliation when three elements are present: (a) the duty to preserve the
information, (b) a culpable breach of that duty, and (c) resulting prejudice. Id. at *5. Again, this
formulation leaves open the real possibility that a non-culpable (and non-sanctionable) loss of relevant
information can happen. (a) Duty to preserve information A party has a duty to preserve information
when that party “has notice that the evidence is relevant to litigation, or . . . should have known that the
evidence may be relevant to future litigation.” Id. at *6. The duty to preserve information encompasses
documents or tangible things by or to individuals “likely to have discoverable information that the
disclosing party may use to support its claims or defenses.” Id. This articulation makes clear that the
scope of the preservation duty is directly proportional to the matter at hand and not an abstract,
unbounded duty. (b) A culpable breach of the duty to preserve information 3 A “culpable” breach of a
duty is one that is blameworthy—in other words, not an innocent mistake. Judge Rosenthal specifically
notes that mere negligence in most courts is generally not enough to warrant an instruction on
spoliation. Also, Judge Rosenthal observes that in most circuits, courts do not impose the severe
sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions
unless there is evidence of “bad faith.” Id. Judge Rosenthal further notes that her analysis and
conclusions are, in part, at odds with the framework established in Pension Committee due to the rubric
of case law developed in the Second Circuit. Id. at *7. (c) Resulting prejudice The third element of
spoliation, “resulting prejudice,” is important because not all destruction or alteration of evidence
negatively impacts the other party’s ability to present its case. Both “culpability” and “prejudice” are
case-by-case determinations, in which notions of reasonableness and proportionality are paramount. Id.
at *6. Thus, Judge Rosenthal’s opinion provides guidance to courts deciding a spoliation claim to
consider the nature of the case, the amount in controversy, and the degree to which the conduct in
question actually impairs the innocent party’s ability to present its case. (2) Determining whether
spoliation merits an adverse inference instruction Judge Rosenthal’s decision identifies the elements of
a request for an adverse inference instruction due to spoliation as similar, but not identical, to those of
spoliation itself. The requesting party must establish that: (a) the party with control over the evidence
had an obligation to preserve it at the time it was destroyed; (b) the evidence was destroyed with a
culpable state of mind; and (3) the destroyed evidence was “relevant” to the party’s claim or defense
such that a reasonable trier of fact could find that it would support that claim or defense. Id. at *7.
Judge Rosenthal notes that courts further divide the “relevance” factor of this analysis into three
subparts: (i) whether the evidence is relevant to the lawsuit, (ii) whether the evidence would have
supported the inference sought, and (iii) whether the nondestroying party has suffered prejudice from
the destruction of the evidence. Id. (a) Demonstrating the relevance of lost information The burden on
the innocent party to demonstrate the “relevance” of lost information begs the question: How is this
possible, if the information is lost? Often, as in Rimkus, the party seeking discovery can replace some
deleted information, or obtain extrinsic evidence of its content. Id. at *8. For example, a forensic
analysis of Rimkus’ computer system revealed that, three days before his departure from the company,
the executive sent a flurry of work documents to his personal e-mail account. Id. at *15. Rimkus was
able to mine its own server for these e-mails, which contained income statements for several company
offices. Yet, even if Rimkus had been unable to recover the e-mails, the circumstances under which they
were sent would probably have satisfied the relevance criterion. Requiring parties to show that lost
information is relevant and prejudicial is an important check on spoliation allegations and sanctions
motions. Id. at *8. Still, courts realize the difficulty inherent in demonstrating the nature of something
that is missing. Speculative or generalized assertions that the missing evidence would have been
favorable to the party seeking sanctions are insufficient. However, sometimes the evidence in the case
as a whole sufficiently indicates that the lost information would have helped the requesting party
support its claims or defenses. In Pension Committee, the court found that, even for severe sanctions,
relevance and prejudice may be presumed when the spoliating party acts 4 in a grossly negligent
manner.3 Here, because much lost information was recovered or its relevance shown by circumstantial
evidence, Judge Rosenthal determined that there was “neither a factual or legal basis, nor need, to rely
on a presumption of relevance or prejudice.” Id. at *36. (b) The role of prejudice in Rimkus Despite—or
because of—the Rimkus defendants’ best efforts, the case generated voluminous discovery. See id. at
*32. Defendants produced some records, Rimkus was able to retrieve many of the deleted records from
other sources (such as internet service providers), and deposition testimony was plentiful. Judge
Rosenthal concludes that, taken together, these sources of evidence provide sufficient material for
Rimkus to present its case, thus mitigating the prejudicial effect of the defendants’ conduct. Id. The
court also emphasizes the fact that some of the lost information appears to favor the defendants,
further reducing the prejudice to Rimkus. Id. at *33. (c) The adverse instruction in Rimkus4 Ultimately,
Judge Rosenthal crafts the following adverse inference instruction: [The jury will] hear evidence about
the deletion of emails and attachments and about discovery responses that concealed and delayed
revealing the deletions. . . . [The jury will learn that, after a certain date] the defendants had a duty to
preserve emails and other information they knew to be relevant to anticipated and pending litigation. If
the jury finds that the defendants deleted emails to prevent their use in litigation with Rimkus, the jury
will be instructed that it may, but is not required to, infer that the content of the deleted lost emails
would have been unfavorable to the defendant. In making this determination, the jury is to consider the
evidence about the conduct of the defendants in deleting emails after the duty to preserve had arisen
and the evidence about the content of the deleted emails that cannot be recovered. Id. at *34. The
nature of this inference—permissive rather than mandatory—is consistent with the inferences used in
other spoliation cases cited by Judge Rosenthal. See id., n.34. Notably, however, the instruction is
significantly shorter than the instruction in Pension Committee, in part because the instruction in
Rimkus concerns only the favorability of the evidence, whereas the instruction in Pension Committee
deals with both relevance and favorability.5 The instructions also differ in terms of the defendants’
ability to overcome the negative inference. In Pension Committee, the jury instruction permitted jurors
to presume that the lost evidence was both relevant and favorable to the defendants, but then asked
jurors to assess whether the individual defendants had successfully rebutted this presumption. If jurors
found that a defendant had done so, then they were to discard the negative inference. In contrast, the
jury instruction in Rimkus was silent as to the defendants’ ability to rebut the presumption, thereby
increasing the likelihood that jurors would apply the negative inference. Neither 3 Pension Comm. of the
Univ. of Montreal Pension Plan v. Banc of Am.., LLC, No. 05 Civ. 9016, 2010 WL 184312 at *5 (S.D.N.Y.
Jan. 15, 2010). 4 On top of the adverse inference instruction, Judge Rosenthal also required the
defendants to pay Rimkus the reasonable costs and attorneys’ fees required to identify and respond to
the spoliation. Id. at *126-27. The defendants agreed that this sanction was appropriate. The court
noted that attorneys’ fees serve as additional deterrence for spoliation and compensation for the
innocent party. 5 Pension Comm., 2010 WL 184312 at *23-24. 5 instruction places the jury in the role of
assessing when the duty to preserve arose or the scope of the duty. Conclusion The Rimkus decision, like
the Pension Committee decision, provides valuable guidance to parties, counsel, and courts regarding
the nature of preservation duties and the consequences when relevant evidence is lost—whether
intentionally or inadvertently. Together, the two decisions provide an important backdrop to the
growing dialogue surrounding the question of whether further civil justice reform efforts are needed to
provide additional guidance in the area of preservation duties and sanctions or whether the existing
body of rules and case law are sufficient to deal with these issues. As a practical matter, the decision
underscores the importance of a defensible and workable preservation plan to every client—large and
small. The best way to avoid the difficult, expensive, and potentially risky thicket of differing authority in
the area of sanctions is to steer clear of such problems in the first place. Contact us For further
information or if you have any questions regarding this Alert, please contact your Nixon Peabody
attorney or:  Jonathan Redgrave, partner, at (202) 585-8258 or jredgrave@nixonpeabody.com 
Amanda Vaccaro, associate, at (202) 585-8241 or avaccaro@nixonpeabody.com  Andrew Cosgrove,
associate, at (952) 232-7044 or acosgrove@nixonpeabody.com
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Home > USA > Litigation, Mediation & Arbitration

United States: Spoliation Of Evidence In California: What’s

Left After The Supreme Court Decision In Cedars-Sinai v
Superior Court
Last Updated: February 1 2001
Article by Mark Canepa
Baker Manock & Jensen

Last spring, the California Supreme Court eliminated the tort of intentional spoliation of evidence,
joining those jurisdictions that refuse to recognize a civil action for the intentional destruction of
evidence by a party to a lawsuit, at least when the spoliation victim knows or should have known of
the alleged spoliation before trial or a decision on the merits. See Cedars-Sinai Med. Ctr. v Superior
Court (1988) 18 C4th 1, 17, 74 CR2d 248. When the alleged spoliator is not a party to the lawsuit, but
rather a third party with a duty to preserve the evidence, recent appellate court decisions indicate that
the tort is still viable.

Ironically, it was the Second District Court of Appeal in Smith v Superior Court (1984) 151 CA3d 491,
198 CR 829, that departed from established case law 14 years ago to create the tort remedy for
litigants harmed by the destruction or suppression of evidence. Recognized as a landmark
decision, Smith led the movement nationwide to recognize the intentional spoliation tort and was cited
by courts in other states that either adopted or rejected its holding. See generally Nolte, The Spoliation
Tort: An Approach to Underlying Principles, 26 St. Mary’s L J 351 (1995). In 1985, the Second District
broadened the Smith decision to include negligent spoliation of evidence. Velasco v Commercial Bldg.
Maintenance Co.(1985) 169 CA3d 874, 877, 215 CR 504.

In Cedars-Sinai Med. Ctr. v Superior Court, supra, the supreme court rejected Smith and much, but not
all, of its progeny, replacing it with an alternative framework of preexisting remedies for the intentional
destruction of evidence by litigants. Attorneys who previously counseled their clients to file spoliation
claims should be ready to offer clients new advice as to which, if any, of the court’s alternative
remedies will be effective.

The Cedars-Sinai Case

In Cedars-Sinai, a medical malpractice action brought on behalf of a minor child, the plaintiff alleged
that the defendant medical center was negligent during the course of labor and delivery, causing in
utero oxygen deprivation and severe permanent injuries to the child.

As is typical in catastrophic birth injury cases, plaintiff sought discovery of copies of the medical
center’s records of the labor and delivery, including the fetal monitoring strips that recorded the
unborn child’s heartbeat during the later stages of labor. Such strips may help prove or disprove
allegations of negligence or actual harm to a child during the moments leading up to delivery. The
defendant claimed that it was unable to locate certain records, including the fetal monitoring strips.

In response to the defendant’s inability to provide these critical records, plaintiff attempted to file an
amended complaint adding a cause of action for intentional spoliation of evidence. In the proposed
amended complaint, plaintiff claimed that the defendant had intentionally destroyed the missing
records to preclude recovery in any subsequent malpractice action.

The supreme court rejected plaintiff's attempt to add a cause of action for intentional spoliation of
evidence as a separate and distinct cause of action, thereby removing the underpinnings of
the Smith case and virtually eliminating the intentional spoliation tort in California. Although the court
acknowledged that the intentional destruction of evidence is a "grave affront to the cause of justice
and deserves our unqualified condemnation,'' it nevertheless found that a tort remedy for spoliation of
evidence imposed a number of undesirable social costs that were unnecessary, in view of the
alternative remedies available to address the destruction of evidence in anticipation of litigation. 18
C4th at 4.

Alternatives To Spoliation Claims

In Cedars-Sinai, the supreme court directed California attorneys to three preexisting statutory
alternatives to a spoliation of evidence claim: Evid C §413 (and related civil jury instructions), CCP
§2023, and Pen C §135. 18 C4th at 11. As discussed below, not all these alternatives will provide relief
in all cases in which a spoliation action was previously appropriate.

Evidence Code §413

Evidence Code §413 provides:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier
of fact may consider, among other things, the party's failure to explain or to deny by his testimony
such evidence or facts in the case against him. or his willful suppression of evidence relating thereto, if
such be the case.
Section 413 also forms the basis for BAJI 2.03, regarding willful suppression of evidence.

When available. Evid C §413 and BAJI 2.03 can provide counsel with a powerful weapon at trial in
cases involving the intentional (or even negligent) destruction of evidence.

For example, in Bihun v AT&T Info. Sys., Inc. (1993)13 CA4th 976, 16 CR2d 787, a sexual harassment
action, the plaintiff served on defendant employer a demand to produce plaintiff's personnel file at
trial. Defense counsel objected to the demand on several grounds, including counsel's own statement
that there was nothing relevant in the sought-after file. In fact, at trial it was revealed that not only
was the plaintiff's file "lost," but that defense counsel had never even seen it and had been told by his
clients several months earlier that it could not be located. 13 CA4th at 991.

At plaintiff's request, the trial court gave the following special instruction based loosely on Evid C §413
and BAJI 2.03:

If you find that defendant AT&T Information Systems, Inc. wilfully suppressed the personnel file of
[Plaintiff], you may draw an inference that there was something damaging to defendant's case
contained in that personnel file. Such an inference may be regarded by you as reflecting defendant's
recognition of the strength of plaintiff's case generally and/or the weakness of its own case. The
weight to be given such circumstance is a matter for your determination.

13 CA4th at 992.

On appeal, defendant claimed that the special instruction on willful suppression of evidence was
improper, that it went far beyond the language of Evid C §413 and BAJI 2.03, and that because there
was no direct evidence that the file had been intentionally destroyed, plaintiff's instructions were in
error. 13 CA4th at 992.

The Second District Court of Appeal rejected defendant's claims and specifically found that direct
evidence of the deliberate destruction of a specific piece of material evidence was not a prerequisite
for an instruction on willful or intentional suppression of evidence. The court held that there was
sufficient circumstantial evidence to support the instruction when (1) other personnel files could be
located but plaintiff's file was missing; (2) the disappearance of plaintiff's file was covered up by
defendant; (3) defendant's business rules required maintenance of the employee's personnel file if a
matter is in litigation; and (4) it was reasonably probable that plaintiff's performance evaluations and
any harassment complaints would be in the missing file. 13 CA4th at 994.

Practice Tip: Counsel faced with inadequate discovery responses should keep Bihun in mind. If
discovery responses state that key records are lost or missing, follow up immediately with additional
requests. To create an evidentiary trail that will support an appropriate jury instruction on missing
records, use special interrogatories, production requests, or even depositions to establish:

I. the method of record keeping for such materials;

II. the name of the custodian of records;

III. where such records are stored in the course of ordinary business: and

IV. whether any other similar records are also lost or misplaced.
Although the Cedars-Sinai facts are not identical to those of Bihun, it is easy to see how a similar jury
instruction could have been an effective weapon at trial for the Cedars-Sinai plaintiff, had the evidence
supported an Evid C §413 willful suppression instruction. In closing argument, counsel could have used
the instruction to supplement testimony from plaintiff's own expert that in the later stages of labor and
delivery, the fetal heart strips would have shown an impending catastrophe. Counsel might also have
argued that there was evidence that the fetal heart strips from other deliveries on the day of plaintiff's
birth were available, although plaintiff's was not. The instruction might also have led the jury to infer
that the strips were destroyed to conceal evidence of negligence.

Indeed, the supreme court in Cedars-Sinai expressly condoned the use of special instructions based on
BAJI 2.04 and Evid C §413 when appropriate. "Trial courts, of course, are not bound by the suggested
language of the standard BAJI instruction and are free to adapt it to fit the circumstances of the case,
including the egregiousness of the spoliation and the strength and nature of the inference arising from
the spoliation." 18 C4th at 12; see also Walsh v Caiden (1991) 232 CA3d 159, 283 CR 326 (defendant
in wrongful death action can ask trier of fact to draw adverse inferences from plaintiff's refusal to have
autopsy conducted before cremation).

Code of Civil Procedure §2023 Sanctions

The Cedars-Sinai court also reaffirmed the use of discovery sanctions in place of intentional spoliation
of evidence claims. The court made it clear that destroying evidence either (1) in response to a
discovery request, or (2) in anticipation of such a request, constitutes "misuse of discovery" under CCP
§2023. Under CCP §§2023(a)(4) (failing to respond or submit to authorized method of discovery) and
2023(a)(6) (making evasive response to discovery), counsel and clients may seek a variety of
sanctions, including monetary, contempt, issue, evidence, and termination sanctions, against a party
who has intentionally destroyed evidence. 18 C4th at 12.

Although discovery sanctions can be an effective and practical alternative to an intentional spoliation
claim, attorneys counseling their clients on the use of sanctions will find that some of these sanctions
are more useful than others. For example, contempt sanctions (including a possible jail sentence), are
usually reserved for situations in which the court's dignity is compromised and no other suitable
penalty can be found. See e.g., In re de la Parra (1986) 184 CA3d 139, 145, 228 CR 864. Thus,
although your client might want the other party in jail, this is not a realistic remedy in a civil discovery
dispute.

Similarly, terminating sanctions are usually imposed only after lesser sanctions have been ordered, and
then disobeyed. See e.g., Deyo v KiIbourne (1978) 84 CA3d 771, 793, 149 CR 499. But see Do It
Urself Moving & Storage, Inc. v Brown. Leifer, Slatkin & Berns (1992) 7 CA4th 27, 36, 9 CR2d 396.
Unless evidence is destroyed after the court has ordered it to be preserved and produced, terminating
sanctions seem less likely than other remedies, although fairness and common sense might suggest
otherwise. On the other hand, as the U.S. Court of Appeals for the Ninth Circuit said recently, when
the discovery violation "so damages the integrity of the discovery process that there can never be
assurance of proceeding on the true facts, a case dispositive sanction may be appropriate." Valley
Eng'rs. Inc. v Electric Eng’g Co. (9th Cir 1998) 158 F3d 1051 (affirming dismissal as discovery sanction
against party that hid "smoking gun" memo and lied about it throughout three years of struggle to
obtain discovery).

Although it is well-established that CCP §2023 allows for monetary sanctions in appropriate situations,
it is difficult to see how token monetary sanctions could replace a spoliation cause of action against a
party who has intentionally destroyed critical pieces of evidence. For example, monetary sanctions
would probably have been of little benefit to the plaintiff in Cedars-Sinai, unless such sanctions were
so high as to constitute a virtual award for the case.
The more likely use of §2023 sanctions in the context of destroyed evidence will be issue or evidence
preclusion sanctions ordered by the court against the offending party. Such preclusion is hardly new,
but may have been overlooked during the development of the tort of intentional spoliation.

Issue or evidence preclusion as a remedy for the destruction or loss of evidence was used effectively
in Puritan Ins. Co. v Superior Court (1985) 171 CA3d 877, 217 CR 602, an indemnity action arising out
of the mechanical failure of the drive shaft of a conveyor belt system.

In Puritan Ins., Puritan sued Tri-C Machine Corporation following a drive shaft failure, alleging that Tri-
C had negligently repaired or serviced the shaft five months before the accident. After the drive shaft
failed, and in anticipation of litigation, Puritan obtained the drive shaft and had it tested by its own
expert. During subsequent discovery, Tri-C requested that Puritan make the shaft available for its own
independent testing. Puritan was unable to comply with the request because its own expert had
apparently lost the shaft following his physical inspection. 171 CA3d at 880.

Tri-C-brought several motions to compel production of the missing drive shaft, but Puritan remained
unable to locate it. U1timately, the trial court granted Tri-C’s request for sanctions and ordered that
Puritan and its expert were precluded from making any reference at trial to any physical examination
of the drive shaft and any testing conducted on the shaft by Puritan’s expert.

On appeal, the Third District affirmed:

It is undisputed that Puritan’s expert had completed his examination of the shaft by the time it was
lost. That loss precluded Tri-C's experts from making their own examination of the shaft and reaching
their own conclusions as to the cause of its failure. Due to the loss, then, Puritan stood to enjoy an
unwarranted advantage in establishing its case. To the extent the trial court's sanction order merely
prohibited Puritan from exploiting that advantage, i.e., to the extent that it prohibited testimony
derived from inspection of the shaft, it was entirely proper. To that extent the sanction was
"appropriate to the dereliction" because it served to remove the tactical advantage the loss had
created and place the parties on a more equal footing. . . The discovery sanction did not "exceed that
which is required to protect the interest of the party entitled to but denied discovery. . . ." We
conclude the trial court properly excluded Puritan's expert testimony based on examination or testing
of the shaft itself.

171 CA3d 885; see also Carlucci v Piper Aircraft Corp. (SD Fla 1984) 102 FRD 472.

Using the language in Puritan and related cases as guides, it is easy to see that issue or evidence
preclusion can, in appropriate cases, effectively replace spoliation claims, as envisioned by the court
in Cedars-Sinai.

Penal Code §135

Finally, the court in Cedars-Sinai also cited Pen C §135 as an alternative remedy to intentional
spoliation. Section 135 states:

Every person who, knowing that any book, paper, record, instrument in writing, or other matter or
thing is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized
by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced,
is guilty of a misdemeanor.
Realistically, it is difficult to see how Pen C §135 will be an effective remedy for parties who have been
the victims of the destruction of evidence. This is so for several reasons.

First, it has already been recognized that the crime set forth in §135 is one in which only the state can
prosecute. There is no civil cause of action available to a party harmed by violation of that
section. Agnew v. Parks (1959) 172 CA2d 756, 766, 343 P2d 118.

Second, as the court found when it created the tort of intentional spoliation of evidence in Smith v
Superior Court, it would be a mistake to assume that §135 will provide a realistic deterrent to the
intentional destruction of evidence. Although §135 was originally a felony, it is now only a
misdemeanor. "If crucial evidence could be intentionally destroyed by a party to a civil action who
thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would
be of minimal deterrence." Smith v Superior Court (1984) 151 CA3d 491, 499, 198 CR 829. Third, as
the Smithcourt said, "We know of no reported prosecution under section 135—adopted in 1872—. . .
for destroying or concealing documentary evidence relevant only to prospective civil action." 151 CA3d
at 500 (emphasis in original). Thus, it seems unlikely that this alternative will provide a useful and
realistic remedy for the destruction of evidence in most cases.

Spoliation Claims: What's Left?

The Cedars-Sinai court expressly left open the issue of whether a cause of action should be recognized
in the case of "third party" spoliation, i.e., spoliation by a non-party to the cause of action to which the
evidence is relevant. 18 C4th at 18 n4.

In the recent case of Johnson v United States Servs. Auto. Ass'n (1998) 67 CA4th 626, 79 CR2d 234,
the Third District Court of Appeal reviewed Cedars-Sinai and concluded that the cause of action for
third party spoliation of evidence remains viable. The plaintiff in Johnson suffered serious brain injury
when he was ejected from his car during an accident. Two years later, he and his family sued the
automobile manufacturer for product liability, alleging that the seat belt was defective. In the time
between the accident and the lawsuit, however, plaintiff's insurer, defendant USAA, had salvaged,
repaired, and resold the car. When plaintiffs sued USAA for third party spoliation of evidence, the jury
rejected their claim.

The Third District affirmed. It noted that after the accident, plaintiff's father specifically declined to
retain the car because it was a total loss. The court reviewed Cedars-Sinai and other third party
spoliation cases and concluded that under these circumstances, the defendant had no duty to preserve
the evidence. An action for third party negligent spoliation of evidence can be maintained only if the
defendant had a duty to preserve the evidence, i.e., if there was either (1) an agreement by the third
party to preserve evidence; (2) a specific request to preserve evidence accompanied by the offer to
pay the cost of preservation; (3) a voluntary undertaking to preserve that induced reasonable and
detrimental reliance; or (4) a statutory or contractual relationship giving rise to such duty. 67 CA4th at
635. See also Hernandez v Garcetti(1998) 68 CA4th 675, 80 CR2d 443 (assuming that third party
spoliation continues as a tort, statute of limitations began to run on day that plaintiff learned, or
reasonably should have learned, that evidence had been sold); Dunham v Condor Ins. Co. (1997) 57
CA4th 24, 66 CR2d 747; Coca-Cola Bottling Co. v Superior Court (1991) 233 CA3d 1273, 1293, 286 CR
855; Velasco v Commercial Bldg. Maintenance Co. (1985) 169 CA3d 874, 215 CR 504 (maintenance
company not liable for negligent spoliation when it disposed of bottle fragments left in unmarked
paper bag on attorney's desk; case was basis for BAJI 7.96 on negligent spoliation).

Finally, in cases of first party intentional spoliation, the supreme court in Cedars-Sinai has also left
open the question of whether a cause of action may be maintained when the spoliation victim does not
discover the destruction or suppression of evidence until after the case is concluded. 18 C4th at 18 n4.
Conclusion

The tort of intentional spoliation of evidence by a party to litigation is no longer recognized in

California. In its place, the supreme court set forth alternative remedies to wrongs involving the willful
suppression or destruction of evidence before trial. Attorneys should be ready to counsel their clients
on this important change and help them choose carefully among these alternatives. By doing so,
counsel and the courts can help ensure that no party, whether plaintiff or defendant, is deprived of a
fair trial as a result of intentionally destroyed or suppressed evidence.