Earlier this year, the California Supreme Court held that third parties cannot be sued in tort for intentional "spoliation" - the destruction or loss of evidence.
But what about negligent spoliation, which several California appellate courts have recognized as an independent tort? That tort, which involves the non-intentional loss or destruction of evidence that an individual or entity had a duty to preserve, has never been well-defined since it first saw the light of day in California some fifteen years ago.
And now that the high court has said, in Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (1998), and Temple Community Hospital v. Superior Court, 20 Cal.4th 464 (1999), that lower courts had erred in recognizing intentional spoliation as an independent tort, it is not clear whether and to what degree negligent spoliation lives on.
The Supreme Court's analysis in Cedars-Sinai and Temple, as well as a handful of more recent court of appeal decisions, provide some guidance as to when a cause of action for negligent spoliation lies. The Supreme Court's analysis suggests that negligent spoliation probably does not lie against party-opponents or their agents, but that the tort does lie against third parties who have no connection to the litigation in which the plaintiff was seeking to use the spoliated evidence. Three court of appeal decisions handed down since Cedars-Sinai are consistent with this analysis.
In Cedars-Sinai, Justice Joyce Kennard, writing for six justices (with Justice Marvin Baxter concurring only in the result), found that there is no cause of action for intentional spoliation by a party-opponent. In Temple, Chief Justice Ronald George, writing for a bare four-justice majority (with Justice Baxter again concurring, this time in the opinion), held that intentional spoliation does not lie against a third party - in that case, a hospital (and one of the defendants in the case) that allegedly spoliated evidence that the plaintiff wished to use in her lawsuit against the other defendants.
In both cases, the court offered four reasons for its holding. First, permitting tort recovery for intentional spoliation would conflict with the policy against creating derivative tort remedies for litigation-related misconduct. The justices explained that, aside from malicious prosecution, California courts do not permit civil suits for litigation-related misconduct such as perjury, concealment of evidence, and presentation of false evidence. Intentional spoliation should therefore not be excepted.
Second, the court noted the availability of alternative, non-tort remedies for intentional spoliation, such as instructions permitting the jury to draw an inference against a party who has failed to retain certain evidence, discovery sanctions, attorney disciplinary proceedings and even criminal prosecution. Importantly, Temple noted that at least some of these remedies would remain available when a party's agent has committed the spoliation. Third, the court pointed out the difficulties in determining the extent of the damages in intentional spoliation cases, because there typically is no way to ascertain what the lost evidence would have shown and how much it would have weighed in the party's favor.
Finally, the court found that intentional spoliation lawsuits impose unnecessary costs on juries, litigants and courts. These costs include liability in cases where the evidence would not have changed the outcome of the underlying lawsuit, the costs of document retention by businesses in order to avoid liability and the potential for jury confusion where the parties try a spoliation claim at the same time they try the principal causes of action.
All of these considerations apply with equal force to negligent spoliation actions against litigants (including co-parties) or their agents. To start with, although the Supreme Court did not address negligent spoliation in Cedars-Sinai or Temple, it did not base its holding in either case on any distinction between intentional and negligent spoliation. For that reason, the Supreme Court's analysis may apply equally to negligent spoliation. And given the court's four reasons why intentional spoliation against a party opponent should not lie, there is little chance that a negligent spoliation action would survive a demurrer against a party to the litigation or the party's agent.
Indeed, three of the Supreme Court's Cedars-Sinai/Temple "factors" apply equally to negligent and intentional spoliation actions against parties. The general policy against derivative remedies for litigation-related misconduct, the uncertainty of harm in spoliation cases and the costs associated with a spoliation cause of action are the same in both intentional and negligent spoliation cases. And although criminal penalties and the inference under Evidence Code §413 against parties who "willfully" destroy evidence would not apply in cases of negligent loss or destruction, discovery sanctions would still be available as an alternative remedy under the court's second factor.
For these reasons, it is probable that a cause of action for negligent spoliation against a party-opponent no longer exists in California - if indeed it ever existed. And the same conclusion holds if an alleged spoliator has acted on a party's behalf, such as in an agency or similar capacity. As noted above, Temple's discussion of intentional spoliation by third parties makes it clear that its four-factor analysis is appropriate for third parties who have an agency relationship with a party opponent.
But when we turn to negligent spoliation actions against non-parties who have had no connection to the litigation, the four Cedars-Sinai/Temple considerations have little application. There is thus no reason not to recognize a cause of action for negligent spoliation in such cases - which is probably why California courts have allowed negligent spoliation claims against such parties for many years. Indeed, three California courts of appeal, writing in the wake of Cedars-Sinai, have all assumed - probably correctly - that litigants may still maintain a negligent spoliation action against this more limited universe of defendants.
For example, in Johnson v. United Services Automobile Association, 57 Cal. App. 4th 626 (1998), the Third District held that a cause of action for negligent spoliation against a third party - there, an insurer for one of the parties - was still available despite Cedars-Sinai. In particular, the court noted that the first two Cedars-Sinai factors - the policy against derivative remedies for litigation-related wrongdoing and the availability of non-tort remedies - were not applicable where the defendant did not have any connection to the litigation that the plaintiff was contemplating. Johnson also held that the uncertainty of harm was not an insurmountable problem. (Johnson went on to hold, however, that the plaintiff there did not prove that the insurer had a duty to preserve evidence that the plaintiff wanted for a lawsuit against a car manufacturer.)
Two other courts of appeal have reached similar results. In Hernandez v. Garcetti, 68 Cal. App. 4th 675 (1998), Division Six of the Second District assumed without deciding that a negligent spoliation action was possible against a district attorney's office that allegedly failed to prevent a towing company from selling a car that the plaintiff needed as evidence in her suit against a car manufacturer. And in Galanek v. Wismar, 68 Cal. App. 4th 1417 (1999), Division One of the Fourth District held that a legal malpractice action against a third party - there, the plaintiff's former attorney - was possible where the attorney allegedly had permitted the destruction of her damaged automobile, making it impossible for her to pursue her product liability suit against the car manufacturer.
Johnson, Hernandez and Galanek were all decided before the Supreme Court decided Temple, which held that an intentional spoliation claim against another defendant in the litigation does not lie. Those courts of appeal are nonetheless correct in concluding that negligent spoliation is still a viable tort against a third party who does not act on behalf of a party-opponent or who has no connection to the litigation. As Johnson noted, the factors the Supreme Court considered in relation to spoliation actions against parties (or, by logical extension, their agents) have little in common with actions against independent third parties. True, negligent spoliation actions against independent third parties create problems with uncertain damages and might force some businesses to develop policies for retaining documents or other types of evidence. But there likely is no better remedy against parties who have no relation to an ongoing lawsuit and who negligently lose or destroy evidence. After all, one cannot pursue sanctions or obtain a jury instruction containing an adverse inference against a nonparty.
Negligent spoliation, then, still survives as an independent tort when the wrongdoer is not a party to the litigation or a party's agent. But given the Supreme Court's policy reasons for prohibiting intentional spoliation actions, would-be litigants should shy away from bringing negligent spoliation actions against parties or their agents. There is no need to risk an opposing party's demurrer by bringing a separate cause of action for spoliation when discovery or other types of sanctions provide a safer - and sometimes more expedient - alternative.