Some courts and practitioners feel the death of these torts is a good thing, because trial courts have discretion to issue sanctions commensurate with the spoliator's conduct and the harm caused. As a practical matter, jurors deliberating over the spoliation torts were often confused by the difficult task of determining how, if at all, the alleged spoliation had injured the plaintiff's case, let alone the value of the harm to the plaintiff.
Other practitioners feel that the spoliation torts were a critical check on pre-litigation and litigation conduct. They believe that in the absence of these torts (and due to trial judges' disinclination to order severe sanctions for such abuse), some litigants are taking advantage of the situation, and spoliation is on the rise.
In 1998, the California Supreme Court began what turned out to be a long, arduous process of eliminating the spoliation torts. In Cedars-Sinai, the court struck down the tort of first-party intentional spoliation of evidence (i.e., Party A intentionally destroys evidence that Party B intended to use against Party A). In 1999, the court's decision in Temple Community Hospital v. Superior Court, 20 Cal. 4th 464 (1999), continued the process, striking down third-party intentional spoliation of evidence (i.e., Party C intentionally destroys evidence that Party B intended to use against Party A). However, Cedars-Sinai and Temple Community did not rule on the fate of the tort of negligent spoliation of evidence.
On April 20, the first of several appellate court decisions crushing first-party negligent spoliation was issued. In Farmers Insurance Exchange v. Superior Court, 79 Cal. App. 4th 1400 (2000), California's 4th District Court of Appeal held it would be "absurd" to recognize first-party negligent spoliation when the Supreme Court had disallowed an intentional spoliation claim. If intentional conduct did not warrant recognition as a tort, negligent conduct was even less worthy.
In May, on the heels of Farmers, came two more decisions addressing negligent spoliation of evidence, Coprich v. Superior Court, 80 Cal. App. 4th 1081 (2000), and Hassoldt v. Patrick Media Group Inc., 96 Cal. Rptr. 2d 307 (2000) (Hassoldt I). Coprich and Hassoldt I came out of the 2nd District and rejected first- and third-party negligent-spoliation claims. Though these were not Supreme Court decisions — and therefore not the final word on negligent spoliation — for all intents and purposes, the tort seemed dead. Few courts or practitioners felt the Supreme Court was likely to leave negligent spoliation standing when it had already leveled intentional spoliation.
Following Coprich and Hassoldt I, the only issue that remained was whether the Cedars-Sinai line of authority would be applied retroactively. In the past month, two appellate court decisions have come down holding that in the wake of Cedars-Sinai, all tort-based spoliation claims should be dismissed and any nonfinal verdict or decision based on a tort theory of spoliation should be reversed and retried.
Hassoldt v. Patrick Media Group Inc., 2000 Daily Journal D.A.R. 11191 (Oct. 13, 2000) (Hassoldt II), involved a property owner who sued an outdoor billboard company, Patrick Media Group, for trimming a tree on her property without authorization to do so. Patrick allegedly destroyed papers and photos documenting the tree trimming, giving rise to the spoliation claims. At trial, the jury returned a verdict of $130,000 in general damages and $150,000 in punitive damages (on the spoliation-of-evidence claim).
Citing to the rationale of Cedars-Sinai, namely, that "non-tort remedies existed to rectify the intentional destruction of evidence by a party," the Hassoldt II court held that Cedars-Sinai should be retroactively applied. The court rejected the plaintiff's argument that she "reasonable relied" on the validity and existence of the spoliation tort because there was no California Supreme Court opinion addressing the issue.
The Hassoldt II court pointed to the fact that Cedars-Sinai was on review by the Supreme Court at the time of the jury's verdict, thus, there was obvious uncertainty as to how the issue would be decided and no reasonable basis for reliance. The court further rejected the plaintiff's argument that the jury's award on the spoliation claims should be treated as a de facto sanction for the defendant's behavior.
The Hassoldt II court reversed and remanded the case for retrial. Because a general verdict form was used, there was no way to know whether the spoliation claims caused the jury to award general or punitive damages (though the punitive-damages award was most likely based on spoliation). Furthermore, the court noted that retroactive application of Cedars-Sinai would not unduly burden the administration of justice because: "The (spoliation) cause of action can be stricken from any complaint in a case that has not yet gone to trial, and damages based on spoliation of evidence can be overturned in any case now pending on appeal, where it is clear from the judgment or special verdict that such damages were based on a spoliation cause of action."
Shaw v. Hughes Aircraft Co., 2000 Daily Journal D.A.R. 10733 (Sept. 29, 2000), the 2nd District's other recent decision, shares the rationale of Hassoldt II. Shaw held that the most compelling case for an exception to the general rule of retroactive application is where the new rule "completely denies a party his day in court, or deprives him of any remedy whatsoever."
The Shaw court went on to note that Shaw's case presented a weak argument for an exception to the general rule of retroactive application because Shaw sought her remedies at the trial-court level, albeit unsuccessfully. The Shaw plaintiff requested discovery sanctions for the alleged spoliation. She also availed herself of a jury instruction that creates an inference adverse to the spoliating party where the jury finds that spoliation occurred.
At the end of the day, the Shaw court reversed the trial-court judgment to the extent it was based on spoliation of evidence and directed the trial court to dismiss the spoliation causes of action.
Defense attorney Michael J. Bonesteel, of Haight, Brown & Bonesteel in Santa Monica, is relieved that the spoliation torts have been laid to rest. Bonesteel notes that lawyers purveying spoliation theories tend to focus almost all their attention on such theories — sometimes with little regard for the underlying claim — due to the "sexiness of these conspiracy-like (spoliation) claims to a jury." Moreover, Bonesteel believes juries struggled with complex and confusing jury instructions on spoliation and usually ended up guessing or speculating in the damages phase of a spoliation trial.
In spite of these concerns, Bonesteel believes courts may have gone too far in eradicating the spoliation torts. Describing a product-liability case he recently handled where a co-defendant destroyed the very product Bonesteel was hired to defend, he states, "How could I defend a product that no longer existed and that my co-defendant claimed was defective?"
For these reasons, Bonesteel favors the creation of an equitable claim for spoliation. Bonesteel envisions that such matters be tried "at law" to a trial judge, with damages coming in the form of some type of evidentiary, issue or monetary sanctions in the underlying action.
One of the strongest advocates of the spoliation torts was, and continues to be, plaintiffs' attorney Christopher E. Angelo, of Mazursky, Schwartz & Angelo in Los Angeles. Angelo has been tremendously successful over the years prosecuting negligent and intentional spoliation claims and feels the torts are an essential check and balance on the discovery process.
Angelo mourns the death of the spoliation torts due to his frustration with trial courts, which he feels are inconsistent in what they consider to be spoliation, and their "unwillingness to exact serious sanctions even where obviously warranted." Angelo states that courts are less inclined to believe spoliation has occurred than juries are. He states: "In a good 50 percent of the cases where I prove spoliation has occurred, the trial court takes a technical position and awards no sanctions at all."
Angelo is having little, if any, success convincing courts to order severe sanctions (e.g., striking the answer or totally shifting the burden of proof to the defendant) and only sometimes gets the court to give a jury instruction that an adverse inference should be drawn if spoliation has been proven. Angelo feels that spoliation is on the rise and legislative action may be necessary.
The spoliation torts may be dead and buried, but it seems unlikely spoliation will stay underground for long. With the multitude of remedies available to courts to address spoliation issues (and creative, hard-driving lawyers like Angelo to push them along), a renaissance could occur at any time.
Barry Thompson is a partner in the Los Angeles Office of Crosby, Heafey, Roach & May. He was counsel of record for one of the product manufacturers in the Temple Community case. Bradley O. Cebeci is an associate in the firm's Los Angeles office.