Spoliation Of Evidence In California: What’s Left After The Supreme Court Decision In Cedars-Sinai v Superior Court

Last spring, the California Supreme Court eliminated the tort of intentional spoliation of evidence, joining those jurisdictions that refuse to recognize a civil action for the intentional destruction of evidence by a party to a lawsuit, at least when the spoliation victim knows or should have known of the alleged spoliation before trial or a decision on the merits. See Cedars-Sinai Med. Ctr. v Superior Court (1988) 18 C4th 1, 17, 74 CR2d 248. When the alleged spoliator is not a party to the lawsuit, but rather a third party with a duty to preserve the evidence, recent appellate court decisions indicate that the tort is still viable.

Ironically, it was the Second District Court of Appeal in Smith v Superior Court (1984) 151 CA3d 491, 198 CR 829, that departed from established case law 14 years ago to create the tort remedy for litigants harmed by the destruction or suppression of evidence. Recognized as a landmark decision, Smith led the movement nationwide to recognize the intentional spoliation tort and was cited by courts in other states that either adopted or rejected its holding. See generally Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary’s L J 351 (1995). In 1985, the Second District broadened the Smith decision to include negligent spoliation of evidence. Velasco v Commercial Bldg. Maintenance Co. (1985) 169 CA3d 874, 877, 215 CR 504.

In Cedars-Sinai Med. Ctr. v Superior Court, supra, the supreme court rejected Smith and much, but not all, of its progeny, replacing it with an alternative framework of preexisting remedies for the intentional destruction of evidence by litigants. Attorneys who previously counseled their clients to file spoliation claims should be ready to offer clients new advice as to which, if any, of the court’s alternative remedies will be effective.

In Cedars-Sinai, a medical malpractice action brought on behalf of a minor child, the plaintiff alleged that the defendant medical center was negligent during the course of labor and delivery, causing in utero oxygen deprivation and severe permanent injuries to the child.

As is typical in catastrophic birth injury cases, plaintiff sought discovery of copies of the medical center’s records of the labor and delivery, including the fetal monitoring strips that recorded the unborn child’s heartbeat during the later stages of labor. Such strips may help prove or disprove allegations of negligence or actual harm to a child during the moments leading up to delivery. The defendant claimed that it was unable to locate certain records, including the fetal monitoring strips.

In response to the defendant’s inability to provide these critical records, plaintiff attempted to file an amended complaint adding a cause of action for intentional spoliation of evidence. In the proposed amended complaint, plaintiff claimed that the defendant had intentionally destroyed the missing records to preclude recovery in any subsequent malpractice action.

The supreme court rejected plaintiff's attempt to add a cause of action for intentional spoliation of evidence as a separate and distinct cause of action, thereby removing the underpinnings of the Smith case and virtually eliminating the intentional spoliation tort in California. Although the court acknowledged that the intentional destruction of evidence is a "grave affront to the cause of justice and deserves our unqualified condemnation,'' it nevertheless found that a tort remedy for spoliation of evidence imposed a number of undesirable social costs that were unnecessary, in view of the alternative remedies available to address the destruction of evidence in anticipation of litigation. 18 C4th at 4.

In Cedars-Sinai, the supreme court directed California attorneys to three preexisting statutory alternatives to a spoliation of evidence claim: Evid C §413 (and related civil jury instructions), CCP §2023, and Pen C §135. 18 C4th at 11. As discussed below, not all these alternatives will provide relief in all cases in which a spoliation action was previously appropriate.

Evidence Code §413 provides:

In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's failure to explain or to deny by his testimony such evidence or facts in the case against him. or his willful suppression of evidence relating thereto, if such be the case.

Section 413 also forms the basis for BAJI 2.03, regarding willful suppression of evidence.

When available. Evid C §413 and BAJI 2.03 can provide counsel with a powerful weapon at trial in cases involving the intentional (or even negligent) destruction of evidence.

For example, in Bihun v AT&T Info. Sys., Inc. (1993)13 CA4th 976, 16 CR2d 787, a sexual harassment action, the plaintiff served on defendant employer a demand to produce plaintiff's personnel file at trial. Defense counsel objected to the demand on several grounds, including counsel's own statement that there was nothing relevant in the sought-after file. In fact, at trial it was revealed that not only was the plaintiff's file "lost," but that defense counsel had never even seen it and had been told by his clients several months earlier that it could not be located. 13 CA4th at 991.

At plaintiff's request, the trial court gave the following special instruction based loosely on Evid C §413 and BAJI 2.03:

If you find that defendant AT&T Information Systems, Inc. wilfully suppressed the personnel file of [Plaintiff], you may draw an inference that there was something damaging to defendant's case contained in that personnel file. Such an inference may be regarded by you as reflecting defendant's recognition of the strength of plaintiff's case generally and/or the weakness of its own case. The weight to be given such circumstance is a matter for your determination.

13 CA4th at 992.

On appeal, defendant claimed that the special instruction on willful suppression of evidence was improper, that it went far beyond the language of Evid C §413 and BAJI 2.03, and that because there was no direct evidence that the file had been intentionally destroyed, plaintiff's instructions were in error. 13 CA4th at 992.

The Second District Court of Appeal rejected defendant's claims and specifically found that direct evidence of the deliberate destruction of a specific piece of material evidence was not a prerequisite for an instruction on willful or intentional suppression of evidence. The court held that there was sufficient circumstantial evidence to support the instruction when (1) other personnel files could be located but plaintiff's file was missing; (2) the disappearance of plaintiff's file was covered up by defendant; (3) defendant's business rules required maintenance of the employee's personnel file if a matter is in litigation; and (4) it was reasonably probable that plaintiff's performance evaluations and any harassment complaints would be in the missing file. 13 CA4th at 994.

Practice Tip: Counsel faced with inadequate discovery responses should keep Bihun in mind. If discovery responses state that key records are lost or missing, follow up immediately with additional requests. To create an evidentiary trail that will support an appropriate jury instruction on missing records, use special interrogatories, production requests, or even depositions to establish:

I. the method of record keeping for such materials;

II. the name of the custodian of records;

III. where such records are stored in the course of ordinary business: and

IV. whether any other similar records are also lost or misplaced.

Although the Cedars-Sinai facts are not identical to those of Bihun, it is easy to see how a similar jury instruction could have been an effective weapon at trial for the Cedars-Sinai plaintiff, had the evidence supported an Evid C §413 willful suppression instruction. In closing argument, counsel could have used the instruction to supplement testimony from plaintiff's own expert that in the later stages of labor and delivery, the fetal heart strips would have shown an impending catastrophe. Counsel might also have argued that there was evidence that the fetal heart strips from other deliveries on the day of plaintiff's birth were available, although plaintiff's was not. The instruction might also have led the jury to infer that the strips were destroyed to conceal evidence of negligence.

Indeed, the supreme court in Cedars-Sinai expressly condoned the use of special instructions based on BAJI 2.04 and Evid C §413 when appropriate. "Trial courts, of course, are not bound by the suggested language of the standard BAJI instruction and are free to adapt it to fit the circumstances of the case, including the egregiousness of the spoliation and the strength and nature of the inference arising from the spoliation." 18 C4th at 12; see also Walsh v Caiden (1991) 232 CA3d 159, 283 CR 326 (defendant in wrongful death action can ask trier of fact to draw adverse inferences from plaintiff's refusal to have autopsy conducted before cremation).

The Cedars-Sinai court also reaffirmed the use of discovery sanctions in place of intentional spoliation of evidence claims. The court made it clear that destroying evidence either (1) in response to a discovery request, or (2) in anticipation of such a request, constitutes "misuse of discovery" under CCP §2023. Under CCP §§2023(a)(4) (failing to respond or submit to authorized method of discovery) and 2023(a)(6) (making evasive response to discovery), counsel and clients may seek a variety of sanctions, including monetary, contempt, issue, evidence, and termination sanctions, against a party who has intentionally destroyed evidence. 18 C4th at 12.

Although discovery sanctions can be an effective and practical alternative to an intentional spoliation claim, attorneys counseling their clients on the use of sanctions will find that some of these sanctions are more useful than others. For example, contempt sanctions (including a possible jail sentence), are usually reserved for situations in which the court's dignity is compromised and no other suitable penalty can be found. See e.g., In re de la Parra (1986) 184 CA3d 139, 145, 228 CR 864. Thus, although your client might want the other party in jail, this is not a realistic remedy in a civil discovery dispute.

Similarly, terminating sanctions are usually imposed only after lesser sanctions have been ordered, and then disobeyed. See e.g., Deyo v KiIbourne (1978) 84 CA3d 771, 793, 149 CR 499. But see Do It Urself Moving & Storage, Inc. v Brown. Leifer, Slatkin & Berns (1992) 7 CA4th 27, 36, 9 CR2d 396. Unless evidence is destroyed after the court has ordered it to be preserved and produced, terminating sanctions seem less likely than other remedies, although fairness and common sense might suggest otherwise. On the other hand, as the U.S. Court of Appeals for the Ninth Circuit said recently, when the discovery violation "so damages the integrity of the discovery process that there can never be assurance of proceeding on the true facts, a case dispositive sanction may be appropriate." Valley Eng'rs. Inc. v Electric Eng’g Co. (9th Cir 1998) 158 F3d 1051 (affirming dismissal as discovery sanction against party that hid "smoking gun" memo and lied about it throughout three years of struggle to obtain discovery).

Although it is well-established that CCP §2023 allows for monetary sanctions in appropriate situations, it is difficult to see how token monetary sanctions could replace a spoliation cause of action against a party who has intentionally destroyed critical pieces of evidence. For example, monetary sanctions would probably have been of little benefit to the plaintiff in Cedars-Sinai, unless such sanctions were so high as to constitute a virtual award for the case.

The more likely use of §2023 sanctions in the context of destroyed evidence will be issue or evidence preclusion sanctions ordered by the court against the offending party. Such preclusion is hardly new, but may have been overlooked during the development of the tort of intentional spoliation.

Issue or evidence preclusion as a remedy for the destruction or loss of evidence was used effectively in Puritan Ins. Co. v Superior Court (1985) 171 CA3d 877, 217 CR 602, an indemnity action arising out of the mechanical failure of the drive shaft of a conveyor belt system.

In Puritan Ins., Puritan sued Tri-C Machine Corporation following a drive shaft failure, alleging that Tri-C had negligently repaired or serviced the shaft five months before the accident. After the drive shaft failed, and in anticipation of litigation, Puritan obtained the drive shaft and had it tested by its own expert. During subsequent discovery, Tri-C requested that Puritan make the shaft available for its own independent testing. Puritan was unable to comply with the request because its own expert had apparently lost the shaft following his physical inspection. 171 CA3d at 880.

Tri-C-brought several motions to compel production of the missing drive shaft, but Puritan remained unable to locate it. U1timately, the trial court granted Tri-C’s request for sanctions and ordered that Puritan and its expert were precluded from making any reference at trial to any physical examination of the drive shaft and any testing conducted on the shaft by Puritan’s expert.

On appeal, the Third District affirmed:

It is undisputed that Puritan’s expert had completed his examination of the shaft by the time it was lost. That loss precluded Tri-C's experts from making their own examination of the shaft and reaching their own conclusions as to the cause of its failure. Due to the loss, then, Puritan stood to enjoy an unwarranted advantage in establishing its case. To the extent the trial court's sanction order merely prohibited Puritan from exploiting that advantage, i.e., to the extent that it prohibited testimony derived from inspection of the shaft, it was entirely proper. To that extent the sanction was "appropriate to the dereliction" because it served to remove the tactical advantage the loss had created and place the parties on a more equal footing. . . The discovery sanction did not "exceed that which is required to protect the interest of the party entitled to but denied discovery. . . ." We conclude the trial court properly excluded Puritan's expert testimony based on examination or testing of the shaft itself.

171 CA3d 885; see also Carlucci v Piper Aircraft Corp. (SD Fla 1984) 102 FRD 472.

Using the language in Puritan and related cases as guides, it is easy to see that issue or evidence preclusion can, in appropriate cases, effectively replace spoliation claims, as envisioned by the court in Cedars-Sinai.

Finally, the court in Cedars-Sinai also cited Pen C §135 as an alternative remedy to intentional spoliation. Section 135 states:

Every person who, knowing that any book, paper, record, instrument in writing, or other matter or thing is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law, willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

Realistically, it is difficult to see how Pen C §135 will be an effective remedy for parties who have been the victims of the destruction of evidence. This is so for several reasons.

First, it has already been recognized that the crime set forth in §135 is one in which only the state can prosecute. There is no civil cause of action available to a party harmed by violation of that section. Agnew v. Parks (1959) 172 CA2d 756, 766, 343 P2d 118.

Second, as the court found when it created the tort of intentional spoliation of evidence in Smith v Superior Court, it would be a mistake to assume that §135 will provide a realistic deterrent to the intentional destruction of evidence. Although §135 was originally a felony, it is now only a misdemeanor. "If crucial evidence could be intentionally destroyed by a party to a civil action who thereby stands to gain substantially monetarily by such destruction, the effect of a misdemeanor would be of minimal deterrence." Smith v Superior Court (1984) 151 CA3d 491, 499, 198 CR 829. Third, as the Smith court said, "We know of no reported prosecution under section 135—adopted in 1872—. . . for destroying or concealing documentary evidence relevant only to prospective civil action." 151 CA3d at 500 (emphasis in original). Thus, it seems unlikely that this alternative will provide a useful and realistic remedy for the destruction of evidence in most cases.

The Cedars-Sinai court expressly left open the issue of whether a cause of action should be recognized in the case of "third party" spoliation, i.e., spoliation by a non-party to the cause of action to which the evidence is relevant. 18 C4th at 18 n4.

In the recent case of Johnson v United States Servs. Auto. Ass'n (1998) 67 CA4th 626, 79 CR2d 234, the Third District Court of Appeal reviewed Cedars-Sinai and concluded that the cause of action for third party spoliation of evidence remains viable. The plaintiff in Johnson suffered serious brain injury when he was ejected from his car during an accident. Two years later, he and his family sued the automobile manufacturer for product liability, alleging that the seat belt was defective. In the time between the accident and the lawsuit, however, plaintiff's insurer, defendant USAA, had salvaged, repaired, and resold the car. When plaintiffs sued USAA for third party spoliation of evidence, the jury rejected their claim.

The Third District affirmed. It noted that after the accident, plaintiff's father specifically declined to retain the car because it was a total loss. The court reviewed Cedars-Sinai and other third party spoliation cases and concluded that under these circumstances, the defendant had no duty to preserve the evidence. An action for third party negligent spoliation of evidence can be maintained only if the defendant had a duty to preserve the evidence, i.e., if there was either (1) an agreement by the third party to preserve evidence; (2) a specific request to preserve evidence accompanied by the offer to pay the cost of preservation; (3) a voluntary undertaking to preserve that induced reasonable and detrimental reliance; or (4) a statutory or contractual relationship giving rise to such duty. 67 CA4th at 635. See also Hernandez v Garcetti (1998) 68 CA4th 675, 80 CR2d 443 (assuming that third party spoliation continues as a tort, statute of limitations began to run on day that plaintiff learned, or reasonably should have learned, that evidence had been sold); Dunham v Condor Ins. Co. (1997) 57 CA4th 24, 66 CR2d 747; Coca-Cola Bottling Co. v Superior Court (1991) 233 CA3d 1273, 1293, 286 CR 855; Velasco v Commercial Bldg. Maintenance Co. (1985) 169 CA3d 874, 215 CR 504 (maintenance company not liable for negligent spoliation when it disposed of bottle fragments left in unmarked paper bag on attorney's desk; case was basis for BAJI 7.96 on negligent spoliation).

Finally, in cases of first party intentional spoliation, the supreme court in Cedars-Sinai has also left open the question of whether a cause of action may be maintained when the spoliation victim does not discover the destruction or suppression of evidence until after the case is concluded. 18 C4th at 18 n4.

The tort of intentional spoliation of evidence by a party to litigation is no longer recognized in California. In its place, the supreme court set forth alternative remedies to wrongs involving the willful suppression or destruction of evidence before trial. Attorneys should be ready to counsel their clients on this important change and help them choose carefully among these alternatives. By doing so, counsel and the courts can help ensure that no party, whether plaintiff or defendant, is deprived of a fair trial as a result of intentionally destroyed or suppressed evidence.