Spoliation of Evidence: A Fire
by Guy E. Burnette, Jr., Esquire
The term "spoliation" refers to the loss, destruction or alteration
of an object which is evidence (or potential evidence) in a legal proceeding.
It is a concept first recognized by courts in England more than a century
ago which has only recently taken on significance in this country. However,
it is an issue of particular importance to the field of fire investigation
and will likely become increasingly significant as courts are called to
decide the consequences of lost or altered physical evidence in fire litigation
In County of Solano v. Delancy, 264 Cal.
Rptr. 721, 724 (Cal. Ct. App. 1989), the California Court of Appeals defined
the legal meaning of spoliation:
[W]e find no definition of "spoliation"
in the California opinions that have dealt with [the torts of intentional
and negligent spoliation of evidence], even those that first recognized
"spoliation" as a tort. We therefore offer one of our own, at
least for purposes of this opinion: "spoliation" means failure
to preserve property for another's use as evidence in pending or future
In Miller v. Montgomery County, 494 A.2d
761 (Md. Ct. Spec. App. 1985), a Maryland Court defined spoliation as "the
destruction, mutilation or alteration of evidence by a party to an action."
However, courts have now extended the concept of spoliation to include the
failure to preserve evidence as well as the intentional destruction of evidence.1 Passive
conduct which simply permits evidence to be lost or destroyed by others
will be considered spoliation of evidence.
Spoliation of evidence is an issue which can affect
any investigation involving evidence collection and forensic analysis. Recently,
the country witnessed the most celebrated claim of spoliation in the O.J.
Simpson trial. Fire scene investigations are especially vulnerable to spoliation
problems. In order to effectively avoid the consequences of spoliation,
it is important to understand the concept and the ways courts have responded
to this issue when it arises.
Spoliation in Litigation
Litigants in cases where a critical issue turns
on the existence or condition of physical evidence that is unavailable or
has not been preserved will have a difficult (sometimes impossible) time
proving a claim or a defense to a claim. This is particularly true when
the object itself would have been the most reliable proof to establish or
refute the claim. Fire litigation cases exemplify this problem. In those
situations, the jury is left with only witnesses' descriptions or recollections
of the evidence. Under such circumstances, courts must provide an appropriate
remedy for the disadvantaged party by imposing an appropriate punishment
on the wrongdoing party.
The remedies employed by the courts include: (1)
discovery sanctions, arising under the court's "inherent powers"
or under the rules of discovery; (2) application of evidentiary inferences
or limitations under the rules of evidence; (3) independent tort actions
for the intentional or negligent destruction of evidence; and (4) prosecution
under criminal statutes relating to the obstruction of justice.
If the spoliation was the result of deliberate or malicious conduct by a
party, or one of its agents, in a conscious effort to thwart the claim or
defense of a party, many courts have imposed the most severe sanction and
have dismissed actions.2 Several cases have arisen in the area of fire scene investigations
and the loss of evidence from the scene. In Allstate Insurance Co. v.
Sunbeam Corp., 865 F. Supp 1267 (N.D. Ill. 1994), Allstate filed a subrogation
claim against Sunbeam arising out of payment made by Allstate to its insureds
for a fire which damaged the insured's house. Sunbeam moved to dismiss the
case because Allstate failed to preserve certain evidence, which Sunbeam
asserted was essential to its defense.
Allstate's theory was that the fire started from
a leak in the pipes, valves and hoses that supplied gas from the tank to
the grill burners. The fire was intensified by the leaking gas and overheated
the tank, causing it to vent significant additional amounts of propane.
Allstate claimed that the fire would not have overheated the tank, and the
resultant fire to the house would not have occurred, if the grill had been
equipped with a thermal shutoff or safety disconnect device. In contrast,
Sunbeam's theory was that it was more likely that a spare tank of propane
had been stored near the grill which had been overfilled. Sunbeam asserted
the propane in the spare tank expanded as a result of a combination of the
sun's heat, the hot air and the nearby grill. The expansion of the overfilled
tank caused the relief valve to open, releasing propane gas which reached
the burners and ignited.
Sunbeam could not prove its defense because, as
a result of the actions of an Allstate investigator, the second tank had
been discarded and could not be found or examined. The grill frame and accessories
were also unavailable, because they had not been preserved by Allstate's
The magistrate concluded that the missing evidence was highly relevant,
and its absence prejudiced Sunbeam's defense "significantly and irrevocably."
The fact that the product itself was not destroyed was of no consequence,
since "[t]he rule requiring preservation of evidence rests on basic
fairness, and there is no reason to limit it to the product itself."
The magistrate agreed with Sunbeam and ruled that the case should be dismissed.
In doing so, he admonished Allstate, stating:
By reason of plaintiff's act in destroying material
evidence, we conclude that dismissal of the case is an appropriate sanction
deserving of Allstate's cavalier attitude in this case. Knowing full well
that subrogation efforts towards Sunbeam were a distinct possibility, Allstate
nonetheless destroyed all evidence available for Sunbeam to formulate a
cause and origin analysis, and present that analysis to the fact finder.
Sunbeam was inextricably harmed in its ability to defend the lawsuit. Accordingly,
plaintiff's conduct requires, as an appropriate sanction, that the complaint
Similarly, in Capital Chevrolet, Inc. v. Smedley,
614 So. 2d 439 (Ala. 1993), Auto-Owners Insurance Company brought suit against
the manufacturer and retailer of a conversion van that was destroyed in
a fire which began in the engine compartment of the van. After investigating
the cause of the fire and paying its insured's claim, Auto-Owners authorized
disposal of the van so that it would not accrue any more charges for having
the van stored. Eleven months later, the subrogation action was commenced.
The trial court denied General Motors' request to have the case dismissed
because of the spoliation of the evidence. On appeal, however, the Supreme
Court of Alabama held dismissal to be the appropriate remedy, noting: "[T]his
is basically a subrogation claim brought by the same insurance company that
ordered the destruction of items that would have been crucial evidence in
that company's action."
While the sanction of dismissal has been employed
by several courts, some courts look to see if lesser sanctions will be sufficient
to punish the conduct. In Transamerica Insurance Group v. Maytag, Inc,
650 N.E.2d 169 (Ohio App. 1994), a fire occurred at a residence insured
by Transamerica. Transamerica paid the loss to its insured and hired an
investigator to evaluate the scene and determine the origin of the fire.
The investigator determined that the cause of the fire was a faulty power
cord on a Maytag refrigerator. Pictures were taken of the refrigerator and
the power cord was preserved but the refrigerator itself was not preserved.
See id. at 170.
Transamerica filed a subrogation action against Maytag alleging negligence
and breach of implied warranties. Maytag filed a summary judgment motion
alleging that since the refrigerator was destroyed prior to the suit, the
doctrine of spoliation provided a complete defense to its liability. The
trial court dismissed the action as a sanction for the spoliation. See
On appeal, the court noted that traditionally Ohio
courts have followed the policy of imposing the least severe sanction or
at the very least, a sanction short of outright dismissal of the action
unless the Plaintiff's conduct evidences bad faith. Although the court observed
that there was no suggestion that the affirmative destruction of the refrigerator
could be attributed to Transamerica, the court still affirmed the ruling
despite the absence of any bad faith. See id. at *4. The court stated
that it believed the trial court went too far in ordering an outright dismissal
of the action for Transamerica's failure to insure the refrigerator would
be preserved. The court was not convinced that a less severe sanction was
unavailable. The court held that the sanction was disproportionate in this
case. See id. at 171.
The standard in criminal cases appears to require
a strict showing of bad faith before the evidence will be suppressed and/or
the case dismissed. For example, in State of Florida v. Bletard,
Case No. 94-227-CFA (8th Jud. Cir. 1995), the Circuit Court in Bradford
County refused to dismiss a case based on spoliation of evidence. The facts
in that case revealed that on February 22, 1994, a fire occurred at a building
that was being leased by the accused, Bletard. An investigation was conducted
by the Florida State Fire Marshal's office and the fire was determined to
be incendiary. Before the defendant's arrest, control of the building was
released to the owner who then repaired the damage. The Defendant filed
a motion to dismiss because "the state failed to preserve discoverable
evidence, i.e., the building, thereby placing the Defendant in a position
of not being able to refute any testimony given by its expert." In
the alternative, the Defendant alleged he was prejudiced by the introduction
of expert opinion testimony without the ability to challenge that testimony
with his own expert. The court denied the Motion to Dismiss and held that:
Whatever duty the Constitution imposes on the
States to preserve evidence, that duty must be limited to evidence that
might be expected to play a significant role in the suspect's defense.
To meet this standard of constitutional materiality, evidence must both
possess an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonable available means. California
v. Trombetta, 467 U.S. 479, 488-89 (1984).
The Defendant has not shown anything beyond a
remote possibility of an exculpatory value in the building, and has not
shown that there was any apparent exculpatory value in the building.
Independent testing is not the only means available
to the defense and does not encompass a prosecutorial duty to produce the
State's sample for testing. An accused's due process right to attack the
credibility of the results of the tests is preserved, and the extreme sanction
of suppression is unnecessary. Houser v. State, 474 So. 2d 1193,
1195 (Fla. 1985).
The Defendant retains the right to cross-examine
the Investigator from the Fire Marshal's office and to attempt to raise
doubts in the mind of the factfinder whether the investigation was properly
administered. Trombetta, 467 U.S. at 490.
Absent a showing of bad faith by the State, and
absent any apparent exculpatory value prior to the failure to preserve
the building, the Defendant's due process rights have not been infringed
upon. Furthermore, the Defendant's due process rights are protected by
the Defense's opportunity for cross-examination.
The practical effect of suppression of this evidence
would have been dismissal of the case as the state would not have been able
to prove that the fire was intentionally set. Thus, it can be seen that
without a showing of bad faith and the potential exculpatory value of the
destroyed evidence, criminal courts are unwilling to suppress the evidence
or dismiss the charges.
Similarly, in Houser v. State, 474 So. 2d 1193 (Fla. 1985), the defendant
was driving a vehicle when he struck a concrete wall. The passenger in the
car died on impact. At the time of the accident, the police took a blood
sample which showed a blood alcohol level of 0.18%. Four months after the
accident, Houser's attorney sought the blood sample to have it independently
tested. The sample had not been refrigerated and thus had lost any value
for testing purposes. The court rejected the defendant's due process argument
and held that:
The United States Supreme Court has already held
that there is no federal constitutional requirement to preserve breath
samples taken to determine blood alcohol levels. . . . Routine, good faith
destruction of remnants of the sampling showed no conscious effort to suppress
exculpatory evidence. More importantly, the Court held, due process requires
preservation of evidence only if it is likely to be significant in the
suspect's defense. . . . We see no difference between the . . . rationale
for breath samples and the situation regarding blood samples. . . . We
therefore hold that the state is not obligated to take affirmative steps
to preserve a blood sample. . . . on behalf of criminal defendants.
In Melendez v. State, 498 So. 2d 1258 (Fla.
1986), the defendant argued that he was denied due process because the police
investigators failed to collect and preserve certain physical evidence that
might have been beneficial to him: a blood sample from the scene, a stain
on the victim's car seat, clothes and shoes of several witnesses and the
victim, a gun, and a hunting knife found in the victim's desk drawer. The
court held that:
This claim, relating to the opportunity to present
a defense, involves "what might loosely be called the area of constitutionally
guaranteed access to evidence." . . . Taken together, this group of
constitutional privileges delivers exculpatory evidence into the hands
of the accused, thereby protecting the innocent from erroneous conviction
and ensuring the integrity or our criminal justice system." . . .
The concern is that the accused have access to exculpatory evidence, not
all possible pieces of evidence that the police have rejected to play a
significant role in the suspect's defense." The evidence must "possess
an exculpatory value that was apparent before the evidence was destroyed."
There is "no constitutional requirement that the prosecution make
a complete and detailed accounting to the defense of all police investigatory
work on a case." . . . Most of the alleged negligent non-preservation
of evidence in this case occurred prior to the time appellant became a
suspect. We find neither evidence of a conscious effort by the police to
suppress exculpatory evidence in this case nor a showing that rejected
evidence possessed an apparent exculpatory value. We affirm this point
relating to the collection and preservation of evidence.
Exclusion of Expert Testimony
The exclusion of expert testimony has been justified as a sanction for spoliation
based on "the unfair prejudice that may result from allowing an expert
to deliberately or negligently put himself or herself in the position of
being the only expert with first-hand knowledge of the physical evidence
on which expert opinions as to defects and causation may be grounded."3 Such
exclusion has been upheld regarding testimony that is based on physical
evidence which the expert or a party destroyed. This sanction has been imposed
regardless of whether the destruction was deliberate or negligent, and regardless
of whether it occurred before or after the expert was retained by a party
to the litigation.4
In Bright v. Ford Motor Co., 578 N.E.2d
547 (Ohio App. 1990), the Plaintiff had several parts of the vehicle at
issue cleaned and "degreased" prior to providing the parts to
the defendant for examination and inspection. Ford Motor moved for dismissal
of the action contending it had been deprived of the use of the evidence.
The lower court prohibited both plaintiff's experts from testifying with
regard to the parts at issue.
On appeal, the court recognized that the failure to preserve evidence is
sanctionable. However, the sanction must be just and a sanction which in
effect puts a party "out of court" must be based on a demonstrable
prejudice to the opposing party. See id. at 549. The court put forth
what it deemed "a workable formulation of prejudice" and stated
that the defendants should enjoy a presumption of prejudice and that the
plaintiffs have the burden of establishing that there was no prejudice.
The court also stated that if it is impossible for either party to meet
their burden of persuasion concerning the idea that the innocent party is
prejudiced by the destruction or spoliation of the evidence or the converse
of that idea, the party who destroyed the evidence must suffer the presumption
that his/her wrongful act was prejudicial to the innocent party's case.
The court further stated that it would be "manifestly unjust"
to place this burden of persuasion upon the innocent party. See id.
In Cincinnati Insurance Co. v. General Motors
Corporation, 1994 Ohio App. LEXIS 4960 (Ottawa County Oct. 28, 1994),
the insured's home was damaged by fire. The insurer filed suit against General
Motors alleging that a manufacturing or design defect in the insured's motor
vehicle was the cause of the fire. See id. at *2. General Motors
alleged that the insured's auto-insurance company destroyed evidence and
failed to allow them to examine the vehicle in its "after the fire"
condition. See id.
First, the court determined that in a products
liability action where evidence is intentionally or negligently "spoiled"
or destroyed by a Plaintiff or his expert before the defense has an opportunity
to examine that evidence for alleged defects, a court may preclude any and
all expert testimony as a sanction for "spoliation of evidence".
This case relied on similar holdings in Nally v. Volkswagen of America,
539 N.E.2d 1017 (Mass. 1989) and Hirsch v. General Motors Acceptance
Corp., 628 A.2d 1108 (N.J. Super. L. 1993) in reaching this decision.
The court also concluded that when a defendant alleges that a plaintiff
has destroyed a piece of relevant evidence, the trial court must determine
the degree of prejudice to the defendant and impose a sanction commensurate
with that degree of prejudice.
The court adopted the reasoning in the Bright case
giving the innocent party a presumption of prejudice and placing the burden
of persuasion on the "spoliator" to rebut this presumption but
added that the innocent party must first establish (1) that the evidence
is relevant, (2) that the "spoliator's" expert had an opportunity
to examine the unaltered evidence and (3) that, even though the "spoliator"
was contemplating litigation against the innocent party, the evidence was
intentionally or negligently destroyed or altered without providing an opportunity
for inspection by the innocent party.
In Travelers Insurance Co. v. Dayton Power and
Light Co., 663 N.E.2d 1383 (Ohio Misc. 1996), the court was faced with
determining the appropriate sanction for the disposal of evidence at a fire
scene. In that case, a fire broke out at the insured's business and damaged
two pieces of electrical equipment, a transformer and transition cabinet
serviced by Dayton Power. The insured contacted Travelers, who in turn contacted
SEA, Inc., to examine the damage and determine the cause of the loss. Individuals
from Dayton Power were also on the scene after the fire but they only restored
the electrical power and did not conduct an investigation. They did, however,
take photos of the transition cabinet. See id.
An individual from SEA examined both the pieces
and issued a report stating that the fire was probably caused by the alleged
failure of Dayton Power employees to sufficiently tighten a bolt when they
connected new cables to the transformer five years earlier. After the fire,
the insured disposed of the transition cabinet after being told by SEA,
Inc., that it was not necessary to keep the piece. Travelers paid the insured's
claim and filed a subrogation action against Dayton Power, claiming that
the fire was caused by its negligence in connecting the cables. Dayton Power,
in return, filed a motion for summary judgment, alleging that Travelers'
disposal of the cabinet amounted to spoliation of evidence. See id.
The court first determined that the doctrine of spoliation of evidence is
not limited to product liability cases and applies in cases where the cause
of action is based upon negligence. Although there was no intentional destruction
of evidence in this case, the court determined that negligent or inadvertent
destruction of evidence is sufficient to trigger sanctions where the opposing
party is disadvantaged by the loss. In determining the proper sanction,
it is necessary to look at the relative importance of the evidence and its
relevance. The court found that Travelers and the insured should have known
at the time they disposed the cabinet that it would be material in a lawsuit
and that its importance should have been obvious. Further, the court reasoned
that although not all items at a fire scene are essential to keep for inspection,
if the item is connected to the evidence which would or could indicate the
cause of the fire and its importance is foreseeable, the evidence should
be retained. As such, Dayton Power should have been given a chance to inspect
the cabinet before it was made unavailable. See id.
In light of all these facts, the court next determined
the appropriate sanctions to impose upon Travelers. The court found that
the fact that Dayton Power had personnel on the scene after the fire and
they failed to more closely inspect the cabinet defused the level of prejudice.
However, it is clear that Dayton Power was prejudiced and that it was deprived
of favorable evidence when the cabinet was disposed. See id. at 1387.
Since the court's purpose is to eliminate this prejudicial effect caused
by the disposal of the cabinet, the court ordered the deposition testimony
of the SEA investigator stricken and precluded him from testifying at trial.
Further, the court ruled that no other witness could rely on the investigator's
findings and at trial, the jury was instructed that if it deems the destroyed
evidence significant in determining the cause of the fire, it should infer
that the evidence would reveal facts against Travelers. See id. at
In Travelers Insurance Co. v. Knight Electric Company, 1992 Ohio
App. LEXIS 6664 (Stark County Dec. 21, 1992), the court determined that
the lower court did not abuse its discretion by striking the opinion evidence
of the Plaintiff's expert that was based upon physical evidence no longer
available to the Defendant. In that case, an electrical fire caused damage
to property insured by Travelers. Prior to the fire, Knight was called to
examine the circuit breaker and fix and electrical problem. Knight made
some adjustments after which, some light fixtures began smoking. Shortly
thereafter, it was discovered that the electrical wiring in the ceiling
was on fire. See id. at *2.
After the fire, Travelers hired an expert and an
insurance adjusting service to determine the cause of the fire. The light
fixture and several other pieces of equipment were removed from the property
for testing. After the tests were complete, the items were disposed of by
the independent adjustor. See id. at *3. The trial court ruled that
the expert's deposition and affidavit must be stricken because the items
and the tests performed on those items provided the basis for his opinion
that Knight's negligence caused the fire. On appeal, the court upheld the
trial court's ruling that the party who spoils the evidence has the burden
of persuading the trial court that there was no reasonable possibility that
the opposing party was deprived of favorable evidence.
Another response by courts dealing with spoliation of evidence has been
termed the spoliation inference. Where spoliation has occurred, the court
can impose this sanction by instructing the jury that the missing or altered
evidence should be presumed to have been unfavorable to the party causing
its loss or destruction. As might be imagined, this admonition to the jury
can have a direct impact on the verdict decided by them. The application
of the inference is supported by the objective of deterrence, by placing
the risk of an adverse judgment on the party who created the problem.5 As a
general rule, most jurisdictions require that the conduct resulting in the
loss or destruction was intentional and in bad faith for the inference to
In State of Ohio v. Strub, 355 N.E.2d 819
(Ohio App. 1975), the court stated that in a criminal matter, attempts to
suppress evidence indicate a consciousness of guilt and if proven to have
been made by the defendant, are highly probative of criminality. The court
also recognized the general rule that the intentional spoliation or destruction
of evidence relevant to a case raises an inference that the evidence would
have been unfavorable to the cause of the spoliator. Accord U.S. v. Mendez-Ortiz,
810 F.2d 76 (6th Cir. 1986).
Recently, courts have allowed litigants to bring
independent actions for the intentional or negligent spoliation of evidence.
In Continental Insurance Co. v. Herman, 576 So. 2d 313 (Fla. 3rd
DCA 1991), the court set forth the elements for a cause of action for negligent
destruction of evidence. The elements are as follows: (1) existence of a
potential civil action; (2) a legal or contractual duty to preserve evidence
which is relevant to the potential civil action; (3) destruction of that
evidence; (4) significant impairment in the ability to prove the lawsuit;
(5) a causal relationship between the evidence destruction and the inability
to prove the lawsuit; and (6) damages.7
The Ohio Supreme Court formally recognized the existence of a tort for spoliation
of evidence in Smith v. Howard Johnson Co., Inc., 615 N.E.2d 1037
(Ohio 1993). In Smith, the court looked at several questions certified
to it by the U.S. District Court, Southern District of Ohio, in order to
determine whether Ohio recognizes a claim for intentional or negligent spoliation
of evidence and if so, what are the elements of such a claim. See id.
at 1038. The court found that a cause of action exists in tort for interference
with or destruction of evidence and the elements of such a claim are:
(1) pending or probable litigation involving the
Plaintiff, (2) knowledge on the part of the defendant that litigation exists
or is probable, (3) willful destruction of evidence by defendant designed
to disrupt the plaintiff's case, (4) disruption of the plaintiff's case,
and (5) damages proximately caused by the defendant's acts.
See id. The
court also stated that this cause of action should be recognized between
parties to the primary action and against third parties and the third party
claim can be brought at the same time as the primary action. See id.
Another potential remedy for the wrongful destruction
of evidence is prosecution under federal and state criminal statutes. Some
of these statutes are basic "obstruction of justice" statutes,
while others specifically prohibit the destruction of evidence and provide
criminal penalties under certain circumstances.
Section 2909.02, Ohio Statutes is entitled "Aggravated
Arson" and states in part as follows:
(A) No person, by means of fire or explosion, shall knowingly do any of
the following: (2) cause physical harm to any occupied structure; (3) Create,
through the offer or acceptance of an agreement for hire or other consideration,
a substantial risk of physical harm to any occupied structure.
(B)(1) Whoever violates this Section is guilty of aggravated arson
Section 2909.03, Ohio Statutes is entitled "Arson:
and states in part as follows:
(A) No person, by means of fire or explosion,
shall knowingly do any of the following: (1) cause, or create a substantial
risk of, physical harm to any property of another without the other person's
consent; (2) Cause, or create a substantial risk of, physical harm to any
property of the offender or another with the purpose to defraud. . .
(B)(1) Whoever so violates this section is guilty of arson.
Section 2921.32, Ohio Statutes is entitled "Obstructing
Justice" and states in part as follows:
(A) No person, with the purpose to hinder the
discovery, apprehension, prosecution, conviction or punishment of another
for crime or to assist another to benefit from the commission of a crime,.
. .shall do any of the following: (4) Destroy or conceal physical evidence
of the crime or act, or induce any person to withhold testimony or information
or to elude legal process summoning the person to testify or supply evidence.
(B)(1) Whoever violates this section is guilty of obstructing justice.
Under this section, the penalty for obstruction
of justice is tied to the seriousness of the underlying crime. For example,
if the underlying crime is a felony, obstruction is a fifth degree felony,
with the exception of first and second degree felonies, which make obstructing
justice a third degree felony.
Section 2921.12, Ohio Statutes is entitled "Tampering
with evidence" and states in part as
(A) no person, knowing that an official proceeding
or investigation is in progress, or is about to be or likely to be instituted,
shall do any of the following: (1) Alter, destroy, conceal or remove any
record, document, or thing, with the purpose to impair its value or availability
as evidence in such a proceeding or investigation;
(B) whoever violates this section is guilty of tampering with evidence,
a felony of the third degree.
Spoliation should be a matter of concern to every
fire investigator or attorney involved in the prosecution on defense of
arson related cases. When spoliation occurs, the first victim is the truth.
Only by permitting an objective analysis of the fire scene evidence by both
sides can a fire investigator and attorney fulfill his/her mission as a
truth-seeker, rather than a case-maker. The consequences of improperly destroying
or failing to preserve evidence can be severe and serve as a deterrent to
those who fail to consider the importance of this issue. A recognition of
the need to carefully document the fire scene and to collect and preserve
all potentially relevant evidence will help to avoid the pitfall of spoliation.
1 Katz and Muscaro, Spoliation
of Evidence - Crimes, Sanctions, Inferences and Torts, Tort & Insurance
Law Journal, Fall 1993.
Iverson v. Xpert Tune, Inc., 553 So. 2d 82 (Ala. 1989); Matter
of Estate of Soderholm, 127 Ill. App. 3d 871, 469 N.E.2d 410, 417 (1984)
(destruction of evidence in a non-products action; judgment by default against
plaintiffs); Merck & Co. v. Biorganic Laboratories, Inc., 82
N.J. Super. 86, 196 A.2d 688 (1964) (destruction of documents justified
Nally v. Volkswagon, 405 Mass. 191, 539 N.W.2d 1017, 1021 (1989).
Id.; Bolton v. Massachusetts Bay Transp. Auth., 32 Mass. App. Ct.
654, 656-57, 593 N.E.2d 248, 249 rev. den. 413 Mass. 1104, 598 N.E.2d
Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d
214, 218 (1st Cir. 1982).
See, e.g., Gumbs v. International Harvester, Inc., 718 F.2d 88, 96
(3d Cir. 1983) (evidence accidentally destroyed does not give rise to adverse
inference); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th
Cir. 1974) (destruction must be intentional act); INA Aviation Corp.
v. United States, 468 F. Supp. 695, 700 (E.D.N.Y. 1979) (unfavorable
inference arises against despoiler of evidence only if destruction intentional),
aff'd without opinion, 610 F.2d 806 (2d Cir. 1979).
Katz and Muscaro, supra at p. 66.
Reprinted with permission from the author.