Ports Association of Louisiana

Spoliation of Evidence - Update

For years, the courts in Louisiana have recognized in matters involving civil litigation the concept of “spoliation of evidence.” Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or future litigation. This evidentiary doctrine refers to the intentional destruction of evidence for the purpose of depriving an opposing party of its use. If spoliation is proved, it raises an adverse presumption against the party that destroyed or disposed of the evidence that the evidence would be detrimental to his cause.

An exception to this doctrine may exist when a suit has not been filed and there is no evidence that the party knew litigation would ensue when he discarded the evidence. It may also not apply if the party accused of destroying or not producing the evidence comes forth with a reasonable and adequate explanation.

If not adequately explained, the aggrieved party may be entitled to a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence.

Prior to 1997, the only remedy Louisiana courts had granted for spoliation of evidence claims has been the application of the above-mentioned adverse presumption. Recently, several Louisiana jurisdictions may have set the stage to recognize spoliation of evidence as a distinct and separate tort. In Pham v. Contico International, Inc., 759 So.2d 880 (La. App. 5th Cir. 2000), the issue to be decided was “does a worker’s compensation claimant have a cause of action in tort against his employer for spoliation of evidence to be used against a third party in a tort suit.” The employer claimed it was immune from tort suit by virtue of the act. While the court dismissed the tort suit for spoliation of evidence against the employer it did not do so on the grounds of tort immunity.

The court recognized that the employer could be sued in tort for destroying evidence but, because the employee’s suit did not claim that the evidence had been intentionally destroyed, the petition did not meet certain threshold requirements. Carter v. Exide, 661 So.2d 698 (La. App. 2nd Cir. 1995), and Bethea v. Modern Biomedical Services, Inc., 704 So.2d 1227 (La. App. 3rd Cir. 1997). These courts all recognized that a well plead petition stating a proper claim for spoliation can stand and that the employer cannot shield itself from tort immunity provided in the state Worker’s Compensation Act.

This issue has been the focus of litigation in courts of other states where the courts have consistently held that the employer’s statutory immunity from tort liability to its employee for a work-related physical injury does not, of itself, shield the employer from a claim for economic injury that the employee may suffer as a result of the employer’s post-accident conduct, whether intentional or negligent, that may impair the employee’s ability to recover tort damages for his injuries from third parties. A good discussion of this emerging tort is found in Catoire v. Caprock Telecommunications Corp., 2003 WL 21223258 (E.D. La. 2003).

Judges, however, can exercise their discretion and, if it is determined that evidence was in bad faith, destroyed or disposed of, impose sanctions on the offender. The Court may admonish and advise the jury that the evidence destroyed would have been unfavorable to the party that destroyed the evidence. The Court may also impose monetary sanctions. Factors the Court may consider in determining the size of the penalty are culpability of the offender, prejudice to the other party, and degree of interference with the judicial process. Further, the Court has the power to hold in contempt and to sanction and discipline an attorney who might engage in such practice. The Court may also choose to bar the offending party from introducing evidence and/or the testimony of both lay and expert witnesses. This can have a very detrimental effect on the offending party’s ability to make its case.

Generally, the duty to preserve evidence begins when a party is on notice that the evidence may be needed in court. Once suit is filed, evidence must be presumed or run the risk of sanctions or penalties. This is also true prior to actual filing of litigation. If litigation is reasonable foreseeable, the prudent course is to preserve all that evidence which could foreseeably be of relevance.

The lesson to be learned is that, if an employee is injured due to an alleged defective product or in another instance where a third party may be responsible, the employer should take all reasonable precautions to preserve the evidence. To so do enhances possible recovery of compensation and medical expenses from that third party and will protect you, the employer, from the possibility of being sued in tort by your employee on the grounds that you have deprived him of his third party recovery.

by Wilton E. Bland, Partner Mouledoux, Bland, Legrand & Brackett. 504-595-3000 Or mblb.com