Should Spoliation of Evidence Constitute a Tort?
Spoliation of evidence is the intentional destruction or alteration of a document or instrument.1 It may be perpetrated by a party to litigation, first party spoliation, or by a non-party, known as third party spoliation. Surely no one would defend the practice, but the question remains of how to address it. Should spoliation be the subject of sanctions or should it be its own cause of action? Recently, an Arizona intermediate court declined to join the minority of states which recognize spoliation of evidence as an independent cause of action.
In Lips v. Scottsdale Healthcare Corp., 214 P.3d 434 (2009), Monica Lips appealed the dismissal of her claim for third party spoliation. Lips underwent hip replacement surgery and was equipped with a hip prosthesis manufactured by Encore. The following year, Lips experienced instability in her hip. X-rays revealed that ceramic components of the prosthetic hip had failed and Lips underwent a second surgery to replace the faulty device. Prior to undergoing surgery, Lips requested that the treating hospital preserve the explanted prosthesis. After the surgery, the hospital either lost or destroyed the device and Lips sued for third party spoliation, claiming that the hospital’s failure to preserve the device compromised her products liability case against Encore. The Arizona Court of Appeals, Division 1, Department B, upheld the lower court’s dismissal.
Citing the Arizona Supreme Court decision of La Raia v Superior Court, 150 Ariz. 118 (1986), the Court of Appeals noted that Arizona has firmly rejected the idea of first party spoliation as a cause of action. In La Raia, a tenant was poisoned by a landlord’s use of an outdoor pesticide within her apartment. When contacted by the treating hospital, the landlord stated that he had used a pesticide approved for indoor use and destroyed the actual pesticide used. In rejecting the spoliation claim, the Court reasoned that the landlord’s actions were more properly considered a furtherance of the plaintiff’s injury by impeding her medical treatment.
Still, other courts have drawn a distinction between first and third party spoliation. Acknowledging the critical importance of preserving evidence and recognizing that sanctions are not available against non-parties, these jurisdictions have created causes of action for third party spoliation. The Lips Court identified Montana, New Mexico, Alaska and Ohio as the only jurisdictions to do so.
Interestingly, while the La Raia Court had distinguished its case from an earlier California Court of Appeals case recognizing spoliation of evidence as a cause of action (Smith v. Superior Court, 151 Cal.App.2d 491 (1984)), California later changed course when its Supreme Court overturned Smith.2 California’s Supreme Court reasoned that expanding tort liability to include litigation related misconduct would undermine the goal of resolving litigation in a single proceeding and would provide disappointed litigants a second opportunity to seek compensation.3
The Lips Court drew heavily upon the California Supreme Court’s reasoning, highlighting that Court’s conclusion that the benefits of a spoliation cause of action were outweighed by the burden to the courts and to litigants. The Court of Appeals ultimately declined to join those states distinguishing third party spoliation, instead relying on the fact that Arizona had never recognized spoliation as a cause of action, and noting that even in those states where spoliation was a cause of action, the facts of the Lips case did not meet those requirements.