display | more...

As used in contemporary United States tort law, “spoliation of the evidence” is the name of a tort, a category of private lawsuit for damages. The parallel idea in criminal law would be “obstruction of justice”.

“Spolium” can mean something forcibly removed from the owner --as in “spoils of war” and “to the victor goes the spoils”-- but in this case refers to destruction, alteration or erasure, not deprivation. The term “spoliation” derives from a maxim of evidence law: contra spoliatorem omnia præsumuntur, (“everything is presumed against the one who destroys”) that is, if you destroyed the evidence it may presumed that the evidence was not favorable to you.

This is a developing, common law concept. Theoretically, one might sue for any type of negligent or intentional harm, but in practice, it is much better to proceed along well-worn tracks of precedent. A negligence suit for destroying evidence would require showing that the defendant had a legal duty to preserve the evidence, and suing for destruction of evidence as a general intentional tort would require arguing that the destruction of the evidence was not legally justifiable. “Recognizing” a tort, on the other hand, means that the highest court of that state has given the go ahead to all lawsuits that fit into a particular factual pattern.

As I write this several states (Alaska, Ohio and New Mexico) [Hazen v. Municipality of Anchorage, 718 P.2d 456, 463 (Alaska 1986); Smith v. Howard Johnson Co., 67 Ohio St. 3d 28, 615 N.E.2d 1037, 1038 (Ohio 1993); Coleman v. Eddy Potash, 120 N.M. 645, 649, 905 P.2d 185, 189 (1995)] recognize, i.e. routinely allow lawsuits for “intentional spoliation of the evidence”, when the following elements are present:

  1. the existence of a potential lawsuit;
  2. the defendant's knowledge of the potential lawsuit;
  3. the destruction, mutilation, or significant alteration of potential evidence;
  4. intent on the part of the defendant to disrupt or defeat the lawsuit;
  5. a causal relationship between the act of spoliation and the inability to prove the lawsuit;
  6. damages.

On the other hand, several important jurisdictions (California, New York, New Jersey) refuse to recognize an independent tort and instead evaluate each case as traditional negligence or as an intentional tort.