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Spoliation of Evidence: A Fire Scene Dilemma

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 cases.

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 litigation.

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 investigator.
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 be dismissed.

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 id.

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. at 550.

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. at 1385.

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 1388

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.

Evidentiary Inferences

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 apply.6

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).

Independent Torts

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.

Criminal Statutes

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.

Ohio Statutes

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.

2 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 default judgment).

3 Nally v. Volkswagon, 405 Mass. 191, 539 N.W.2d 1017, 1021 (1989).

4 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 1133 (1992).

5 Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 218 (1st Cir. 1982).

6 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).

7 Katz and Muscaro, supra at p. 66.

Reprinted with permission from the author.

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