This is part one of a four part series discussing the spoliation of evidence. For additional posts discussing the spoliation of evidence, click here.

What if, one day in 1925, the State of Tennessee obliterated all evidence of the fossil record? The most famous American trial of them all, the 1925 Scopes “Monkey Trial,” which challenged the teaching of evolution alongside creationism, might have turned out differently. Evolutionary theory and Biblical scripture were the opposing sources of evidence in State of Tennessee v. John Thomas Scopes. When critical evidence is destroyed (or altered in a meaningful way) during a lawsuit, the laws of many states have a mechanism to fix the problem.

In the law, the destruction of relevant evidence is known by a odd name:  spoliation.  One way that the law fixes the problem is to highlight the offending party’s destruction.  By highlighting the destruction of the evidence, the jury is permitted (but not required) to presume that this evidence would have disfavored the party who destroyed it.  The evidential inference would permit the fact finder “to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.”  Rosenblit v. Zimmerman, 166 N.J. 391 (2002).  This remedy is known as an adverse inference sanction.

The idea behind the remedy is to make the aggrieved litigant, whose case has been impaired by the absence of key evidence, as whole as possible.  The sanction may take different forms.  It can result in the outright dismissal of a party’s claim.  The sanction could require a party to pay legal fees, costs or other monetary fine. When a party has negligently spoliated evidence, a judge may exact one or more of the above sanctions.

Where a party has intentionally (as opposed to negligently) destroyed relevant evidence, New Jersey law suggests that a new and separate tort cause of action may arise.  Hirsch v. General Motors Corp., 226 N.J. Super. 222 (Law Div. 1993).  The Rosenblit court declared that if the spoliation is not discovered until the underlying case has been lost or seriously inhibited, plaintiff may file a separate claim.  In such an action, plaintiff will be required to establish the elements of the tort of fraudulent concealment.  To do so, the fundamentals of the underlying action will also require exposition.  Unless such an action is allowed, a belatedly discovered spoliation claim would be without a meaningful remedy.  Rosenblit at 408.  As a consequence of the Rosenblit decision, the New Jersey’s Civil Model Jury Charge Committee promulgated two model jury charges.  See M.J.C. 5.36H, Alteration of Medical Records (7/02) and M.J.C. 5. 36I, Fraudulent Concealment of Medical Records (7/02).  Nevertheless, most courts throughout the country do not recognize third-party spoliation, whether negligent or intentional, as an independent tort.

Does the doctrine of spoliation instruct parties as to when their affirmative duty to keep evidence begins?  Not really.  However, the touchstone which identifies that start date seems to be at the point that the party reasonably should have anticipated litigation.  Does the law determine how long a party must preserve that evidence?  No.  That obligation is essentially fact-sensitive.