Spoliation of evidence--a primer

Sachs, Rebecca Levy

I.

INTRODUCTION

The term "spoliation" generally refers to the destruction, loss or alteration of evidence.1 Case law has defined spoliation as the "failure to preserve property for another's use as evidence"2 and "the destruction, mutilation or alteration of evidence by a party to an action."3

When evidence is lost or destroyed, either intentionally or negligently, an injured party retains a few different options. A party may seek civil discovery sanctions for the loss or destruction of the evidence.4 Alternatively, under some circumstances and in some jurisdictions, a party may also seek redress by filing an independent cause of action for the spoliation of that evidence.5 This article will outline the duties imposed upon litigants to preserve evidence as well as the sanctions and remedies available for the negligent or intentional destruction of evidence. It will also address an insurance company's obligations to preserve evidence under certain circumstances and consider the related issue of effective loss scene documentation, although a comprehensive discussion of this topic is beyond the scope of this article.

II.

A DUTY TO PRESERVE EVIDENCE

The duty to preserve evidence can arise from several sources, including:

statutes or regulations;6

contracts or agreements;

the foreseeability of harm to an adverse party;

a special relationship between the parties; or

the voluntary assumption of a duty.7

Generally, "[t]he existence or non-existence of a policy or regulation, while relevant to the duty inquiry, should not be the controlling factor. In the end, duty is a legal question for the court, although fact specific principles of foreseeability will be part of any duty equation."8

Additionally, in pre-litigation situations, a legal duty to preserve evidence may arise when:

(1) there is pending or probable litigation involving the defendants;

(2) the party is aware of the existence or likelihood of litigation;

(3) prejudice to the opposing party is foreseeable; and

(4) the evidence is relevant to the litigation.9

The foreseeability of litigation and prejudice to the defendants as well as the reasonableness of the spoliating party's actions are key considerations.10 The scope of the duty only requires that a party act reasonably under the circumstances.11 For example, a duty to preserve evidence has been found to exist in the following circumstances:

When an insurance company orally agreed to preserve an insured's damaged automobile for the insured's product liability action against the manufacturer;12

When an administrative regulation required a hospital to retain medical records,13

When a workers' compensation carrier voluntarily took possession of a chair that had collapsed, injuring an employee, then later lost the chair, precluding the employee's products liability action;14 and

When an insurance company's expert examined a damaged automobile and found that the accident resulted from a manufacturing defect, making it foreseeable that a subrogation claim would be brought against the automobile manufacturer.15

By contrast, where litigation or the relevancy of the evidence is not foreseeable, a party is most likely under no duty to preserve the evidence. At least one court has held that a party does not have a duty to preserve evidence that was not relevant at the time it was destroyed.16

III.

SANCTIONS FOR THE SPOLIATION OF EVIDENCE

Several courts at both the state and federal level have imposed discovery sanctions for a party's loss or destruction of relevant evidence. The issue of spoliation generally arises from a demand for discovery and inspection, followed by a motion for sanctions resulting from the failure to produce the same. The most common forms of sanctions include:

dismissal or default;

the preclusion of evidence; or

a spoliation or other adverse inference.17

When determining whether to issue a sanction, the intent or bad faith of the evidence spoliator typically does not affect whether sanctions will be imposed. Rather, the spoliator's intent is only considered when determining the appropriate remedy or sanction.18

A. Factors Considered When Determining Appropriate Spoliation Sanctions

When determining whether to impose sanctions for a party's loss or destruction of evidence, a court will first consider whether the party had a legal duty to preserve the evidence.19 If the party had no legal duty to preserve the evidence, the imposition of sanctions is inappropriate. However, if it is determined that a party had a legal obligation to preserve the evidence, a court will next consider the intent of the party and the resulting prejudice to an opponent in order to determine whether the party should be sanctioned. The court will assess an appropriate sanction as well.20

1. Intent of the Spoliator

As previously noted, the intent of the spoliator will affect the appropriate sanction to be imposed for the spoliation of evidence. Typically, dismissal is not warranted unless the plaintiff has acted maliciously or in bad faith with regard to the disposal of evidence.21

In a recent case, a Maryland district court (in order to decide the imposition of sanctions), explained that the "intent" to destroy evidence requires that the spoliator have actual or constructive knowledge that the evidence is relevant to pending or potential litigation.22 Actual knowledge implies a subjective disposition to destroy the evidence.23 By contrast, a party may be deemed to have constructive knowledge of the relevancy of evidence if that party was placed on notice by an adverse party (e.g., by a discovery request) or if it was reasonably foreseeable that an action might ensue and the evidence would be discoverable.24

2. Prejudice to the Defendants

A party seeking discovery sanctions against another party for the destruction of evidence must establish prejudice to its position resulting from the adverse party's destruction of the evidence.25 In some circumstances, although the original evidence may not be available, secondary evidence may still exist to diminish the prejudicial impact of the lost evidence. For example, in Joe Hand Promotions v. Sports Page Cafe, Inc.,26 the court found no prejudice where an investigator had failed to preserve the audiotapes of his observations. Since the investigator's transcribed notes of the tapes were still available, in addition to his deposition testimony, the adverse party had access to an adequately assailable substitute. In an attempt at poetic decision making, the court described the prejudice requirement as follows:

The Court, however, must now be objective

Because sanctions imposed are always elective;

As a judicial measure they're not taken lightly

Imposed only sparingly, fairly and rightly.

In the instant case the horse has not bolted;

The status quo has merely been jolted.

With Mesis [the investigator] deposed, his notes readily available

His memory processes are clearly assailable.

The lawyers have failed to brief the concern

As to what, if anything, the jury might learn

About Mesis' notes - be they paper or taped;

Be they celluloid, crumpled, or curiously shaped.27

Additionally, the possible prejudice to a party from the loss of evidence may be reduced by the use of videotapes, photographs, or the retention of reconstruction experts. In many fire cases, for instance, the fire scene is the subject of a condemnation order. Careful documentation of the scene by videotape and detailed photographs before demolition will allow both parties' experts to reconstruct the damage scene in order to establish burn patterns, including those that identify the area and point of origin.28

Furthermore, in product liability design defect cases, where an exemplar product with the same design is available, it is unlikely that a persuasive argument can be made that the loss of the particular product significantly prejudiced the opponent.29 For instance, inspection and destructive testing of a suspect product may be necessary to establish defenses, such as parallel fault protection or the inability of the product to support sustained burning. If a model of the suspect product is available, a duplicate can be procured for the opponent's use as well.

B. Conflicts of Law Issue

It is not clear whether sanctions imposed for the spoliation of evidence are governed by state substantive law or federal evidentiary law.30 It does appear well-settled that federal courts possess the inherent power to issue sanctions for the destruction of evidence.31 Therefore, a federal court may invoke its inherent authority to impose sanctions for the spoliation of evidence even if state law does apply. At least one federal circuit court, however, has applied state law to sanctions for the spoliation of evidence, holding that state law governs issues that potentially alter the outcome of a case.32

IV.

TORT CAUSE OF ACTION

Some courts have recognized a cause of action for the intentional spoliation of evidence or the fraudulent concealment of evidence. However, few courts have recognized a cause of action for the negligent spoliation of evidence.33 The first case to explicitly recognize spoliation as an independent tort cause of action was the 1984 case of Smith v. Superior Court, decided by the California Court of Appeals.34 Since then, courts in many other jurisdictions including Alaska, Florida, Illinois, Kansas, New Jersey and Ohio have recognized the spoliation tort.35

The spoliation tort is analogous to an action for tortious interference with a prospective economic advantage.36 The prospective economic advantage is a plaintiff's opportunity to bring a lawsuit for which damages may be awarded.37 Therefore, some courts have held that the spoliation tort is only directed at protecting potential plaintiffs and is not applicable to a defendant's ability to defend a lawsuit.38

In Viviano v. CBS, Inc.,39 the first New Jersey case to recognize a cause of action for spoliation of evidence, the plaintiff, an employee of CBS, was injured on the job when a machine malfunctioned. Immediately after the incident, CBS removed and discarded the timer on the machine. Though initially unable to identify the manufacturer of the machine, after four years the plaintiff discovered a company memo prepared three days after the incident which identified the manufacturer of the machine and the defect that caused the machine to malfunction. The plaintiff brought suit against CBS for the fraudulent concealment of evidence.

After a jury a verdict was returned for the plaintiff, the defendant appealed, arguing inter alia that New Jersey did not recognize a claim for which relief could be granted. The Appellate Division disagreed, finding that New Jersey recognized a cause of action for the fraudulent concealment of evidence. Such a claim was deemed analogous to the recently recognized tort for "spoliation of evidence."40

The court identified the elements of a cause of action for the fraudulent concealment of evidence as:

(1) pending or probable litigation involving the plaintiff;

(2) knowledge by the defendant of the litigation or probable litigation;

(3) willful and perhaps even negligent destruction of evidence by the defendant, designed to disrupt the plaintiff's claim;

(4) disruption of the plaintiff's case; and

(5) damages proximately caused by the defendant's actions.

By stating the elements, the appellate court held that in order for a plaintiff to succeed on a fraudulent concealment theory, she must demonstrate that the defendant owed her a legal duty to disclose the information to her.41 In Viviano the trial court had instructed the jury that the defendant had a legal obligation to provide the plaintiff with the memorandum because a deposition subpoena had been served on the manager of the plant.42

In contrast to Viviano, a majority of the jurisdictions that have addressed the issue of whether to recognize spoliation as an independent tort have refused to do so. Instead, they "have chosen to counteract a party's deliberate destruction of evidence with jury instructions and civil penalties."43

V.

INSURANCE COMPANY'S DUTY

(OR LACK THEREOF) TO PRESERVE EVIDENCE

The spoliation of evidence raises unique problems for the insurance industry, particularly in subrogation cases.44 The destruction of evidence by the insurer, the insured, or another agent of the insurer could affect the insurance company's ability to pursue its subrogation rights against a third party.45 For example, discovery sanctions have been imposed on an insurer when the destruction of evidence was committed by the insurer's expert.46

In Hirsch v. General Motors Corp.,47 a New Jersey case involving a subrogation action by an automobile insurer against the manufacturer and dealer of the vehicle, the court found that when evidence is unavailable for the defendant's inspection and that situation interferes with a defendant's ability to defend a lawsuit, the defendant may seek discovery sanctions against the insurer. In that case, the plaintiff's Cadillac was brought to the dealership for air conditioning and brake repairs. Nearly seven weeks after the repairs were completed, the Cadillac caught fire as it was parked in the plaintiff's driveway. The Cadillac was declared a "total loss" by the insurer and the insured was paid the full value of the Cadillac.

Approximately six weeks after the fire, the vehicle was inspected by an expert for the insurer. The expert concluded that the fire was caused by a ruptured brake fluid line. Soon thereafter, title to the Cadillac was transferred to a salvage company which in turn sold the Cadillac to an auto sales company (the vehicle's last known whereabouts). Some ten months later the insurer filed a subrogation action against the manufacturer and dealer of the Cadillac. The defendants subsequently brought a motion for sanctions, including dismissal of the plaintiffs complaint, based upon the spoliation of evidence.

The court first observed that under certain circumstances a party may have an independent duty to preserve evidence. It held that a duty to preserve evidence arises when the plaintiff has knowledge of pending or probable litigation and it is foreseeable that the loss of relevant evidence would prejudice the defendant. The court specifically found that the plaintiff (insurer) was aware of probable litigation as early as six weeks after the fire when it received the expert's report. The court therefore concluded that litigation was probable and the plaintiffs were aware of the likelihood of such litigation.

The court next found it foreseeable that disposal of the Cadillac would be prejudicial to the defendants. The defendants were denied the opportunity to have the vehicle inspected to determine the validity of their opponent's expert findings or to inspect independently for other causes of the fire. Lastly, the Cadillac was the focus of the litigation and therefore relevant. The court concluded that the failure to preserve the evidence prejudiced the defendants.

The court then addressed the scope of the plaintiff's duty to preserve evidence. Although the court noted that the duty is not boundless and that a party need only do "what is reasonable under the circumstances,"48 it held that the plaintiff's duties after receiving the expert report included notifying the defendants of probable litigation and providing them with inspection access. Nonetheless, applying the federal approach, the court held that default or dismissal was only appropriate when: (1) the party acted willfully or in bad faith; (2) the victim suffered severe prejudice by the party's actions, and (3) alternative sanctions would not sufficiently punish the spoliator and deter future abuses. Furthermore, it determined that a dismissal should only be ordered if no lesser sanction would sufficiently erase the prejudice suffered by the non-delinquent party. Applying these standards, the court barred the expert report and any testimony relating to its findings.

Other courts have likewise found that an insurer has a duty to preserve evidence when a subrogation claim is foreseeable. In Baliotis v. McNeil,49 the court held that an insurer's knowledge of a possible subrogation claim is sufficient to impose a duty upon the insurer to preserve evidence. In that case, the fire in a residence was allegedly caused by a defective microwave oven. Although the insurer preserved the microwave as well as other items from the premises which were identified as potential causes of the fire, it did not preserve the actual premises/fire scene. Thus, the insurer did not give the manufacturer of the microwave oven the opportunity to inspect the premises. The court found that the manufacturer of an allegedly defective product, who is named as a defendant in a products liability action, is prejudiced if it cannot have its own expert inspect a fire scene to identify other potential causes of the fire. However, once again the court found that the extreme sanction of dismissal or preclusion of evidence was not warranted since the insurer did not act in bad faith. Moreover, it was not impossible to defend the action since the product itself as well as other evidence was preserved. Therefore, the court imposed the lesser sanction of a "spoliation inference" or other adverse inference.50

In Northern Assurance Co. v. Ware,51 the fire insurer of a residence damaged by fire filed a subrogation action against the manufacturer, distributors and installer of a metal chimney which allegedly caused a fire. After the insurer's fire expert examined the premises and concluded that the fire was caused by a faulty stove pipe, the insurer permitted the premises to be demolished without notifying the defendants or providing them an opportunity to inspect the premises. The court found that the proper sanction for the insurer's destruction of evidence was to preclude the insurer's expert testimony regarding the cause of the fire. It reasoned that although there was no evidence of malicious or intentional destruction of evidence, the insurer clearly acted recklessly, and the defendants were substantially prejudiced in constructing a defense to the action.

Several other courts have similarly found it appropriate to sanction an insurer's failure to preserve a product which was the subject or potential subject of a products liability subrogation action by precluding the testimony of the insurer's expert.52 However, it is clear that at least in some circumstances, the severe sanction of dismissal of a civil action may result from an insurer's failure to preserve evidence.53 Under either scenario, an insurer's best option is to take all appropriate meaures to prevent the destruction of potentially relevant evidence.

VI.

CONCLUSION AND RECOMMENDATIONS

All parties to litigation or potential litigation should take every available precaution to prevent the loss or destruction of evidence. Insurance companies should educate their employees, agents and experts regarding their duties to document a loss scene completely and to preserve potentially relevant evidence whenever litigation is pending or foreseeable. Parties should also become familiar with applicable statutes, regulations and other policies or agreements that may impose a duty to preserve evidence.

Moreover, in collecting, preserving and maintaining evidence, the chain of custody of such evidence should be documented. The evidence should be stored in a safe place where the inadvertent disposal of the evidence is not likely. Before relinquishing the evidence or conducting any destructive testing of the evidence, all interested persons should be provided with reasonable notice and the opportunity to inspect the evidence.54 In many cases, the courts have held that a party can shield itself from sanctions or tort liability resulting from the spoliation of evidence by providing the adverse party with a reasonable opportunity to inspect the evidence and by giving notification before destroying the evidence.55

1BLACK'S LAW DICTIONARY 1401 (6th ed. 1990); Scott S. Katz & Anne Marie Muscaro, Spoilage of Evidence - - Crimes, Sanctions, Inferences, and Torts, 29 Tort & Ins. L.J. 51,52 (Fall 1993). The spoliation of evidence concept can be traced to English ecclesiastical law in which the term "spoliation" was used to describe "[a]n injury done by one clerk or incumbent to another, in taking the fruits of his benefice without any right thereunto, but under a pretended title." Katz & Muscaro, supra, at 52 (citing 3 WILLIAM BLACKSTONE COMMENTARIES *90-91). 2Solano v. Delaney, 264 Cal. Rptr. 721, 724 (Ct. App. 1989). On February 1, 1990, the Supreme Court of California denied certification and ordered that the opinion not be officially published. For a discussion of the California Supreme Court's depublication procedure, see Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 ST. MARY'S L.J. 351, 363 n.60 (1995).

3Miller v. Montgomery County, 494 A.2d 761, 767 (Md. Ct. Spec. App. 1985). ^Hirsch v. General Motors Corp., 628 A.2d 1108, 1125 (N.J. Super. Ct. Law Div. 1993). In many states, criminal sanctions are also available. Katz & Muscaro, supra note 1, at 53-54. However, the utilization of criminal penalties is usually not an effective way to protect civil litigants, since prosecutors are often hesitant to prosecute such crimes. Even if a prosecution and subsequent conviction does occur, the civil victim remains uncompensated. Id. See Hirsch, 628 A.2d at 1125.

6See, e.g., 21 C.F.R. 820.180(b) (requiring certain records regarding the manufacturing of medical devices to be retained for a time period equal to the design and expected life of the device, but not less than 2 years from the date the device was placed on the market); Wash. Rev. Code Ann. 70.41.190 (West 1992) (requiring hospitals to retain all medical records relating directly to the care and treatment of a patient for at least ten years following the patient's most recent discharge).

7RICHARD J. HEAFEY & DON M. KENNEDY, PRODUCT LIABILITY: WINNING STRATEGIES AND TECHNIQUES, ch.ll, 11.03[2] (1996); Nolte, supra note 2, at 366-67. 8HEAFEY & KENNEDY, supra note 6, , 11.03[2].

9See Hirsch, 628 A.2d at 1122.

"See id.; see also infra Section V for a discussion of case law applying the foreseeability analysis in the insurance context. "See id. at 1122.

'2Miller v. Allstate Ins. Co., 573 So. 2d 24 (Fla. Dist. Ct. App. 1990). '3Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. Ct. App. 1985). See also De Vera v. Long Beach Pub. Transp. Co., 225 Cal. Rptr. 789,795 (Ct. App.1986); Fox v. Cohen, 406 N.E.2d 178, 182 (III. App. Ct. 1980).

'4Pirocchi v. Liberty Mut. Ins. Co., 365 F. Supp. 277 (E.D. Pa. 1973). 15Hirsch v. General Motors Corp., 628 A.2d 1108,1122-23 (N.J. Super. Ct. Law Div.1993). See also infra Section V, discussing in detail an insurer's duty to preserve evidence. '6H & H Sand & Gravel Haulers Co. v. Coyne Cylinder Co., 632 N.E. 2d 697 (III. App. Ct. 1994).

17 "The spoliation inference allows the fact finder to draw an unfavorable inference against the spoliating party." Hirsch, 628 A.2d at 1126. The inference is based upon the common law doctrine known as omnia praesumuntur contra spoliatorem, which means that "all things are presumed against the wrongdoer." Katz & Muscaro, supra note 1, at 60. The court instructs the jurors that they may infer from the absence of a critical piece of evidence that the evidence would have been unfavorable to the party who destroyed it. J. Brian Slaughter, Spoliation of Evidence: A New Rule of Evidence is the Better Solution, 18 AM. J. TRIAL ADVOC. 449, 451 (1994).

'18See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (no adverse inference should be drawn from the loss of the evidence where the loss was not intentional and it was adequately explained); Baliotis v. McNeil, 870 F. Supp. 1285, 1291 (M.D. Pa. 1994). The first New Jersey case discussing sanctions for the negligent loss of evidence is Nerney v. Garden State Hosp., 550 A.2d 1003 (N.J. Super. Ct. App. Div. 1988). In Nerney, the court held that a party who negligently loses evidence may be barred from introducing testimony regarding that evidence if substantial prejudice would result to the other side. 19See, e.g., Hirsch, 628 A.2d at 1122.

2See id. at 1126-27. See supra Section II for a discussion of the duty to preserve evidence. "See Hirsch v. General Motors Corp., 628 A.2d 1108, 1127 (N.J. Super. Ct. Law. Div.

1993); Joe Hand Promotions v. Sports Page Cafe, Inc., 940 F. Supp. 102 (D.N.J. 1996) (holding that sanctions were not appropriate for investigator's failure to preserve audiotapes of his observations where there was no evidence that destruction of tapes was intentional and investigator's transcribed notes of the tapes were available); HEAFEY & KENNEDY, supra note 6, 11.04. But see Allstate Ins. Co. v. Sunbeam, 53 F.3d 804, 807 (7th Cir. 1995).

Additionally, when lesser sanctions will suffice to erase the prejudice suffered by the other party, dismissal generally is not warranted. Hirsch, 628 A.2d at 1128. 22White v. Office of Public Defender for Md., 170 F.R.D. 138, 148 (D. Md. 1997).

231d. '"Id.

2See Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79-80 (3d Cir. 1994); Siegal v. American Honda Motor Co., 921 F.2d 15 (lst Cir. 1990); Thomas v. Bombardier-Rotax Motorenfabrik, 869 F. Supp. 551 (N.D.III. 1994); Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 365 (D. Mass. 1991). 26940 F. Supp. 102 (D.N.J. 1996). 27Id. at 104 (footnotes omitted).

28See NATIONAL FIRE PROTECTION ASSOCIATION (NFPA) 921, HANDBOOK OF FIRE INVESTIGATIONS, Chapter 8 - Recording the Scene, 8-1 to 8-6; Chapter 9 - Physical Evidence, 9-1 to 9-11.

In recording any fire or explosion scene, the investigator's goal is to record the scene through a medium that will allow the investigator to recall his or her observations at a later date and to document the conditions at the scene. Common methods of accomplishing this goal include the use of photographs, videotapes, diagrams, maps, overlays, tape recordings, and notes.

Thorough and accurate recording of the scene is critical because it is from this compilation of factual data that investigative opinions and conclusions will be developed and supported.

Id. at 8-1.

The fire investigator is often faced with disposing of evidence after an investigation has been completed. The investigator should not destroy or discard evidence unless proper authorization is received. Circumstances may require that evidence be retained for many years and ultimately may be returned to the owner. Id. at 9-11.

29HEAFEY & KENNEDY, supra note 6, 11.03[4].

3"See Schmid, 13 F.3d at 78 (noting the conflict of authorities regarding whether sanctions for the spoliation of evidence are governed by state law or federal law, however, court declined to decide the issue because there was no showing that the state law in Pennsylvania differed materially from the federal law). In Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 364-65 (D. Mass. 1991), the court held that the admissibility or preclusion of evidence in a diversity case is governed by the Federal Rules of Evidence.

31See, e.g., Chambers v. Nasco, Inc., 501 U.S. 32, 43 (1991); Dillon v. Nissan Motor Co., Ltd., 986 F.2d 263, 267 (8th Cir. 1993); Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992); White, 170 F.R.D. 138, 148-49; Baliotis v. McNeil, 870 F. Supp. 1285,1289 (M.D. Pa. 1994).

32Allstate Ins. Co. v. Sunbeam, 53 F.3d 804, 807 (7th Cir. 1995). 33For a review of some of the case law, see Thomas G. Fischer, Annotation, Intentional Spoliation of Evidence, Interfering with Prospective Civil Action, as Actionable, 70 A.L.R.4th 984 (1989 & Supp. 1996). See also infra note 37. 34198 Cal. Rptr. 829 (Ct. App.1984).

35See Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Bondu v. Gurvich,

473 So. 2d 1307 (Fla. Dist. Ct. App. 1985); Shelbyville Mut. Ins. Co. v. Sunbeam Leisure Products Co., 634 N.E.2d 1319 (Ill. App. 1994); Foster v. Lawrence Memorial Hospital, 809 F. Supp. 831 (D. Kan. 1992) (applying Kansas law); Viviano v. CBS, Inc., 597 A.2d 543 (N.J. Super. Ct. App. Div. 1991), cert. denied, 606 A.2d 375 (N.J. 1992); Smith v. Howard Johnson Co., 615 N.E.2d 1037 (Ohio 1993). Additionally, California, Florida and Illinois have recognized a cause of action for the negligent spoliation of evidence. See Velasco v. Commercial Building Maintenance Co., 215 Cal. Rptr. 504 (Ct. App.1985); Bondu v. Gurvich, 473 So. 2d 1307 (Fla. Dist. Ct. App. 1985); Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (11. 1995). 36Fox v. Mercedes-Benz Credit Corp., 658 A.2d 732, 736 (N.J. Super. Ct. App. Div. 1995). 371d.; Hazen, 718 P.2d at 464; Viviano, 597 A.2d at 550.

38Fox, 658 A.2d at 736.

39597 A.2d 543 (N.J. Super. Ct. App. Div. 1991). 40Id. at 549.

41Although the proof needed for a spoliation claim varies from jurisdiction to jurisdiction, the six elements identified by the court in Viviano are common elements, all of which usually must be proved in most jurisdictions that recognize the spoliation tort. HEAFEY & KENNEDY, supra note 6, 11.03.

42597 A.2d at 548. The appellate division did not consider the propriety of this instruction because the defendant did not object to it at trial. Id. at 549. Since Viviano, it has been held that New Jersey recognizes a cause of action for the intentional spoliation of evidence, but not for the negligent spoliation of evidence. See Hirsch v. General Motors Corp., 628 A.2d 1108, 1115, 1118 (N.J. Super. Ct. Law Div. 1993).

43Monsanto Co. v. Reed, No. 95-SC-549-DG, 1997 WL 200431, *5 (Ky. April 24, 1997). See also Weigl v. Quincy Specialties Co., 601 N.Y.S.2d 774,776 (Sup. Ct. 1993) ("ft]he Courts of New York follow the majority view and do not recognize spoliation of evidence as a cognizable tort action.").

"Katz & Muscaro, supra note 1, at 72. 451d.

'6See, e.g., Barker v. Bledsoe, 85 F.R.D. 545 (W.D.Okla. 1979); Nally v. Volkswagen of America, 539 N.E.2d 1017 (Mass. 1989); American Family Ins. Co. v. Village Pontiac GMC, Inc., 585 N.E.2d 1115 (Ill. App. Ct. 1992). 47628 A. 2d 1108 (N.J. Super. Ct. App. Div. 1993).

41d. at 1128.

49870 F. Supp. 1285 (M.D. Pa. 1994).

50Id. at 1292. See supra note 17 for an explanation of a spoliation or adverse inference. 5'145 F.R.D. 281 (D.Me. 1993).

52American Family Ins. v Village Pontiac GMC, Inc., 585 N.E.2d 1115 (Ill. App. Ct.1992); Fire Ins. Exch. v. Zenith Radio Corp., 747 P.2d 911 (Nev. 1987); Unigard Sec. Ins. Co., 982 F.2d at 368-69.

53See, e.g., Allstate Ins. Co., 53 F.3d at 807.

54In arson/fraud cases, notification presents a dilemma to the insurer. Due to the nature of a civil arson/fraud investigation, notification of findings at the scene or other details of the investigation may purposefully be kept confidential. In these circumstances, an insurer runs the risk of bad faith allegations if spoliation occurs, and insurers must tread a thin line between pursuing an investigation to protect against fraudulent claims, while at the same time investigating in such a manner as to avoid allegations of spoliation and/or bad faith. 5`See Reid v. State Farm Auto Ins. Co., 218 Cal. Rptr. 913 (Ct. App. 1985).

Rebecca Levy Sachs is a partner at the Newark, New Jersey law firm of Podvey, Sachs, Meanor, Catenacci, Hildner and Cocoziello; Rutgers University, B.A. with Honors; Rutgers University School of Law, Newark, J.D. with Honors, 1978; Editor in Chief of RUTGERS JOURNAL OF COMPUTERS AND THE LAW; admitted in New Jersey; U.S. District Court for the District of New Jersey; U.S. Court of Appeals, Third, Seventh, and Tenth Circuits. Ms. Sachs is a member of the New Jersey State Bar Association (Federal Practice and Environmental Law Committees), DRI, American Bar Association (TIPS, Energy and Natural Resources and International Law Sections), the International Insurance Law Society, and the National Association of Women Law

yers. Her practice includes complex litigation and insurance coverage matters, and she is responsible for development and supervision of the firm's uniform litigation management and data base management systems.

Lisa J. Trembly is a litigation associate at the law firm of Podvey, Sachs, Meanor, Catenacci, Hildner & Cocoziello in Newark, New Jersey. She received a B.S. with honors from Rutgers University in 1991 and a J.D. from Seton Hall University School of Law in 1994. Ms. Trembly is admitted to practice in New Jersey and Pennsylvania state courts, and the U.S. District Court for the District of New Jersey. She is a member of the New Jersey State, Essex County, Pennsylvania State, and American Bar Associations, as well as a member of the ABA's Section of Litigation. Ms. Trembly's practice includes a concentration on complex insurance litigation and insurance coverage.

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