Attorneys for Plaintiff Attorneys for defendant Attorneys for
Amicus Curiae
Morris L. Klapper Thomas L. Davis Defense Trial
Counsel of Indiana
G. R. Parish, Jr. Julia Blackwell Gelinas
Thomas R. Schultz
Klapper Isaac & Parish Lucy R. Dollens Donald B.
Kite, Sr.
Indianapolis, Indiana Locke Reynolds LLP Schultz &
Pogue, LLP
Indianapolis, Indiana Carmel, Indiana
James D. Johnson
Rudolph Fine Porter &
Johnson
Evansville, Indiana
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 94S00-0403-CQ-130
Patricia Gribben, Plaintiff below,
v.
Wal-Mart Stores, Inc., Defendant below.
_________________________________
Certified Question from the United States District Court
Southern District of Indiana, Indianapolis Division
No. 1:03-CV-141-VSS/SEB
The Honorable V. Sue Shields, Magistrate Judge
_________________________________
March 22, 2005
Dickson, Justice.
Pursuant to Indiana Appellate Rule 64, the United States District
Court for the Southern District of Indiana has certified, and we have
accepted, the following questions of Indiana law:
1. Does Indiana law recognize a claim for "first-party" spoliation of
evidence; that is, if an alleged tortfeasor negligently or
intentionally destroys or discards evidence that is relevant to a tort
action, does the plaintiff in the tort action have an additional
cognizable claim against the tortfeasor for spoliation of evidence?
2. If so, what are the elements of the tort, and must a plaintiff
elect between pursuing the spoliation claim and utilizing an
evidentiary inference against the alleged tortfeasor in the underlying
tort action?
In her certification order, Judge Shields asserts that there is no
controlling Indiana precedent and that courts in other jurisdictions vary
greatly.
The certified questions arise in a tort action by the plaintiff,
Patricia Gribben, for injuries sustained in a fall at a store owned and
operated by the defendant, Wal-Mart Stores, Inc. The plaintiff moved to
amend her complaint to add a claim for spoliation of evidence against the
defendant for its intentional or negligent failure to preserve a
surveillance videotape which she alleges would have been relevant to her
tort claim.
The question is specifically limited to "first party" spoliation, as
distinguished from "third party" spoliation. The former refers to
spoliation of evidence by a party to the principal litigation, and the
latter to spoliation by a non-party. See generally Temple Cmty. Hosp. v.
Superior Court, 976 P.2d 223 (Cal. 1999).
The plaintiff asserts that Indiana should recognize an independent
tort claim for intentional first-party spoliation of evidence. While the
certified question includes both negligent and intentional destruction of
evidence, the plaintiff here claims only intentional spoliation, which she
urges should be treated differently than negligent spoliation. In the
Plaintiff's Brief, she argues that spoliation and the underlying cause of
action should be tried together and, if the jury finds intentional
spoliation related to a relevant issue, the jury should be instructed to
find for the plaintiff on that issue. Plaintiff's Br. at 17. If the jury
finds spoliation was negligent rather than intentional, it would instead be
given a negative inference instruction. Id. In Plaintiff's Response
Brief, however, she appears to present a slightly different proposal, one
not merely restricting the remedy to the relevant issue affected by
spoliated evidence but also urging that "damages for intentional spoliation
should be the identical compensatory damages recoverable in the underlying
case" and that punitive damages would also be recoverable. Plaintiff's
Response Br. at 4.
The plaintiff contends that a tort of intentional spoliation arises
from standard Indiana jurisprudence regarding the existence of a duty of
care, and that the tort is needed to discourage the growing occurrence of
spoliation and its erosion of both the ability of courts to do justice and
public confidence in legal processes. She argues that existing sanctions
are insufficient deterrence to the practice of intentional destruction of
evidence, and that any systemic burden upon courts and juries that might
result from recognizing this new tort would be overwhelmingly outweighed by
the importance of stopping cheating and assuring the availability of
evidence to enable the fact finder to make a fair and informed decision.
The defendant urges that Indiana's existing procedural and
evidentiary safeguards are an adequate deterrent without adopting a new
tort. It also contends that recognizing a new tort of spoliation would
involve the speculative nature of harm and damages, significantly increase
costs of litigation, cause jury confusion, result in duplicative and
burdensome proceedings, be subject to abuse, and make collateral issues the
focus of many disputes. The Amicus Curiae, Defense Trial Counsel of
Indiana, likewise claims that recognition of this independent tort would
likely result in undue burden upon the judicial system, and warns of a
resulting uncertainty and burden upon property owners who must decide
whether to preserve property that others may deem useful evidence, the risk
of erroneous liability determinations, and the possibility of endless or
satellite litigation in an already-crowded judicial system.
Already existing under Indiana law are important sanctions that not
only provide remedy to persons aggrieved, but also deterrence to spoliation
of evidence by litigants and their attorneys. It is well-established in
Indiana law that intentional first-party spoliation of evidence may be used
to establish an inference that the spoliated evidence was unfavorable to
the party responsible. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000)
(involving a jury instruction permitting the inference); Underwood v. Gale
Tschuor Co., Inc., 799 N.E.2d 1122, 1134 (Ind. Ct. App. 2003) (same);
Porter v. Irvin's Interstate Brick & Block Co., Inc., 691 N.E.2d 1363, 1364
(Ind. Ct. App. 1998) (permitting an evidentiary inference to resist summary
judgment). See generally Doug Cressler, Spoliation of Evidence, 36 Res
Gestae 510 (1993).
Potent responses also exist under Indiana Trial Rule 37(B) authorizing
trial courts to respond to discovery violations with such sanctions "as are
just" which may include, among others, ordering that designated facts be
taken as established, prohibiting the introduction of evidence, dismissal
of all or any part of an action, rendering a judgment by default against a
disobedient party, and payment of reasonable expenses including attorney
fees. We further note that attorneys involved in destruction or
concealment of evidence face penalties including disbarment. See Indiana
Rules of Professional Conduct Rules 3.1, 3.3, 3.4(a), 3.4(b), 8.4. In
addition, the destruction or concealment of evidence, or presentation of
false testimony related thereto, may be criminally prosecuted as a Class D
felony for perjury or obstruction of justice. Indiana Code §§ 35-44-1-7,
35-44-3-4.
Absent these sanctions, however, Indiana case law is inconsistent
regarding whether one party to a civil action may obtain the relief sought
therein solely based on the opposing party's intentional destruction of
evidence. In 1941, this Court expressed disfavor of such a claim, as did
our Court of Appeals in 1991. But two other cases from our Court of
Appeals have favorably treated such a claim.
Great American Tea Co. v. Van Buren, 218 Ind. 462, 33 N.E.2d 580
(1941) involved an appeal from a judgment for damages in a personal injury
vehicular collision in which the appellant claimed insufficient evidence
that its driver was acting within the scope of his employment when the
collision occurred. This Court affirmed based largely upon an evidentiary
inference, noting that "[m]any of the facts about which there is
uncertainty were particularly within the knowledge of the appellant and
such a situation may give rise to an inference that if these had been fully
disclosed they would have been unfavorable." 218 Ind. at 467, 33 N.E.2d at
581. Significant to the present certified question, however, is the
opinion's ensuing observation that "this rule will not be carried to the
extent of relieving a party of the burden of proving his case." Id. Under
this view, the spoliation doctrine warranted only an evidentiary
presumption and could not be the basis for awarding the relief sought in
the underlying case.
A product liability claimant's action against his employer for
interference with prospective or actual civil litigation by the spoliation
of evidence was expressly rejected in Murphy v. Target Products, 580 N.E.2d
687, 690 (Ind. Ct. App. 1991), where our Court of Appeals concluded "that
in Indiana there is no common law duty on the part of an employer to
preserve, for an employee, potential evidence in an employee's possible
third party action." Id. Its rejection of the spoliation claim, however,
was narrowly limited as to such actions against a claimant's employer, as
the court added:
We therefore hold that at least in the absence of an independent tort,
contract, agreement, or special relationship imposing a duty to the
particular claimant, the claim of negligent or intentional
interference with the person's prospective or actual civil litigation
by the
spoliation of evidence is not and ought not be recognized in Indiana.
Id. The court reasoned that to hold otherwise would "foster continuous
litigation" and that, prior to receiving notice that they have something
required in a civil action, a non-party "ought to have no legal concerns
about potential evidence in his possession, absent any promises, contracts,
statutes, or special circumstance." Id.
A limited spoliation tort remedy was permitted in Thompson v. Owensby,
704 N.E.2d 134 (Ind. Ct. App. 1998), trans. denied, which involved an
action against the alleged tort-feasor's liability insurance company for
failing to preserve evidence. Identifying the question as "whether an
insurance company that loses evidence may be liable to a third party
claimant for damages attributable to the loss of the evidence," the Court
of Appeals analyzed the question as one of common law duty, placing
particular emphasis on the fact that the insurance carrier "is in a better
position than the lay claimant to understand the significance of the
evidence and the need to maintain it," id. at 138, and that "the carrier
has the unique experience and ability to structure its practices to avoid
harm." Id. at 140. The court concluded that a third-party claimant may
assert a spoliation claim for damages for negligent or intentional conduct
by an insurance carrier, id., but expressly declined to address whether,
outside of the liability insurance context presented, there would be a duty
to maintain evidence. Id. at 138 n.2.
While not involving a separate tort action, intentional spoliation was
the basis for granting a default judgment on liability in Whitewater Valley
Canoe Rental, Inc. v. Franklin County Comm'rs, 507 N.E.2d 1001, 1008 (Ind.
Ct. App. 1987), trans. denied. Finding no abuse of discretion, the court
affirmed a default judgment that had been entered as a sanction for
abusing, restricting, and obstructing discovery in bad faith by either
destroying documents or refusing to produce them. Thus, while in the form
of a discovery sanction, a claim of opposing party intentional spoliation
served to establish liability, although damages were then the subject of a
separate evidentiary hearing.
From its review of Murphy, Thompson, and a third case subsequently
vacated,[1] the United States District Court in Reinbold v. Harris, No. IP
00-0587-C-T/G, 2000 WL 1693792 (S.D. Ind. Nov. 7, 2000) opined that "[t]he
independent tort of spoliation (destruction) of evidence is recognized
under Indiana law." Id. at *1. Judge Tinder nevertheless dismissed the
plaintiff's third-party spoliation claim, finding that the complaint did
not allege an independent tort, contract, agreement, or other special
relationship imposing upon the defendant a duty to the plaintiff to
maintain the evidence (a surveillance videotape), and that the harm in
erasing the videotape was not reasonably foreseeable to the defendant.
In light of Indiana's inconclusive case law, we agree with Judge
Shields that there is no controlling Indiana precedent as to the questions
presented.
Several jurisdictions, including West Virginia, Alaska, Montana, the
District of Columbia, Illinois, New Mexico, and Ohio, recognize evidence
spoliation as a cognizable tort. Hannah v. Heeter, 584 S.E.2d 560 (W. Va.
2003) (granting stand-alone tort status for intentional spoliation and for
some third-party negligent spoliation, but rejecting first-party negligent
spoliation as a stand-alone tort); Nichols v. State Farm Fire & Cas. Co., 6
P.3d 300 (Alaska 2000) (acknowledging independent tort claims for first-
party and third-party intentional spoliation but rejecting tort status for
first-party negligent spoliation); Oliver v. Stimson Lumber Co., 993 P.2d
11 (Mont. 1999) (recognizing tort action for negligent or intentional third-
party spoliation, but not for first-party spoliation); Holmes v. Amerex
Rent-A-Car, 180 F.3d 294 (D.C. Cir. 1999) (recognizing tort for negligent
third-party spoliation); Boyd v. Travelers Ins. Co., 652 N.E.2d 267 (Ill.
1995) (permitting separate tort claim for negligent spoliation against
principal defendant's liability insurer); Coleman v. Eddy Potash, Inc.,
905 P.2d 185 (N.M. 1995) (recognizing tort liability for intentional
spoliation, but not one for negligent spoliation); Smith v. Howard Johnson
Co., 615 N.E.2d 1037 (Ohio 1993) (recognizing tort action for intentional
first-party and third-party spoliation).
But several other jurisdictions considering the issue, among them
Florida, Mississippi, Arkansas, California, Iowa, Texas, Alabama, Georgia,
Kansas, and Arizona have rejected spoliation as an independent tort.
Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251 (Fla. Dist. Ct. App.)
(rejecting tort action for first party spoliation), review granted, 861 So.
2d 430 (Fla. 2003); Richardson v. Sara Lee Corp., 847 So. 2d 821 (Miss.
2003) (rejecting negligent spoliation as an independent tort); Dowdle
Butane Gas Co. v. Moore, 831 So. 2d. 1124 (Miss. 2002) (rejecting
independent cause of action for intentional first-party or third-party
spoliation); Rosenblit v. Immerman, 766 A.2d 749 (N.J. 2001) (rejecting
spoliation as a new tort but permitting similar remedy upon theory of
fraudulent concealment); Goff v. Harold Ives Trucking Co., Inc., 27 S.W.3d
387 (Ark. 2000) (rejecting tort of first-party intentional spoliation);
Temple Cmty. Hosp. v. Superior Court, 976 P.2d 223 (Cal. 1999) (rejecting
tort of intentional third-party spoliation); Meyn v. State, 594 N.W.2d 31
(Iowa 1999) (rejecting tort claim for third-party negligent spoliation);
Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511 (Cal. 1998)
(rejecting tort remedy for intentional first-party spoliation); Trevino v.
Ortega, 969 S.W.2d 950 (Tex. 1998) (refusing to recognize intentional or
negligent spoliation as an independent tort); Christian v. Kenneth Chandler
Constr. Co., Inc., 658 So. 2d 408 (Ala. 1995) (declining to recognize tort
action for first party spoliation); Gardner v. Blackstone, 365 S.E.2d 545
(Ga. Ct. App. 1988) (refusing claim for first party spoliation); Koplin v.
Rosel Well Perforators, Inc., 734 P.2d 1177 (Kan. 1987) (generally
rejecting tort of spoliation of evidence); La Raia v. Superior Court, 722
P.2d 286 (Ariz. 1986) (declining to recognize new tort of intentional
spoliation against first party).
Courts uniformly condemn spoliation. "[I]ntentional destruction of
potential evidence in order to disrupt or defeat another person's right of
recovery is highly improper and cannot be justified." Coleman, 905 P.2d at
189. "The intentional or negligent destruction or spoliation of evidence
cannot be condoned and threatens the very integrity of our judicial system.
There can be no truth, fairness, or justice in a civil action where
relevant evidence has been destroyed before trial." Oliver, 993 P.2d at
17. "Destroying evidence can destroy fairness and justice, for it
increases the risk of an erroneous decision on the merits of the underlying
cause of action." Cedars-Sinai, 954 P.2d at 515. "Destroying evidence can
also increase the costs of litigation as parties attempt to reconstruct the
destroyed evidence or to develop other evidence, which may be less
accessible, less persuasive, or both." Id.
It is thus not surprising that an independent tort remedy for
spoliation of evidence began to be recognized. Smith v. Superior Court,
198 Cal. Rptr. 829 (Cal. Ct. App. 1984); Velasco v. Commercial Bldg. Maint.
Co., 215 Cal. Rptr. 504 (Cal. Ct. App. 1985). In the subsequent
intervening years, however, California came to question and ultimately
reject this approach. In Cedars-Sinai, the California Supreme Court
comprehensively addressed the issue, finding that the acknowledged harms
resulting from the intentional destruction of evidence are "not enough to
justify creating tort liability for such conduct," and declaring that "[w]e
must also determine whether a tort remedy for the intentional first party
spoliation of evidence would ultimately create social benefits exceeding
those created by existing remedies for such conduct, and outweighing any
costs and burdens it would impose." 954 P.2d at 515.
The opinion then more fully discussed the dangers of "creating new
torts to remedy litigation-related misconduct" and of adopting "a remedy
that itself encourages a spiral of lawsuits." Id. It also compared
spoliation to other forms of litigation-related misconduct, such as
perjury, for which there is no tort remedy, and expressed its preference
for policies of evidentiary inference, discovery sanctions, criminal
penalties, civil monetary, contempt, and issue sanctions over derivative
actions. The Cedars-Sinai court also focused on the "uncertainty of the
fact of harm in spoliation cases." Id. at 518.
[E]ven if the jury infers from the act of spoliation that the
spoliated evidence was somehow unfavorable to the spoliator, there
will typically be no way of telling what precisely the evidence would
have shown and how much it would have weighed in the spoliation
victim's favor. Without knowing the content and weight of the
spoliated evidence, it would be impossible for the jury to
meaningfully assess what role the missing evidence would have played
in the determination of the underlying action. The jury could only
speculate as to what the nature of the spoliated evidence was and what
effect it might have had on the outcome of the underlying litigation.
Id.
The California Supreme Court also noted and discussed other factors
that it believed weighed against the creation of a spoliation tort remedy:
the "risk of erroneous determinations of spoliation liability," "the
indirect costs by causing persons or entities to take extraordinary
measures to preserve for an indefinite period documents and things of no
apparent value solely to avoid the possibility of spoliation liability if
years later those items turn out to have some potential relevance to future
litigation," the costs and burdens of "litigating meritless spoliation
actions," and the "significant potential for jury confusion and
inconsistency." Id. at 519-20.
Concluding that the "incremental additional benefits a tort remedy
might create" are outweighed by other policy considerations and costs, the
Cedars-Sinai court denied a tort remedy for first-party intentional
spoliation of evidence. Id. at 521. One year later, the same court
similarly disapproved a tort remedy for intentional spoliation by a third
party. Temple Cmty. Hosp., 976 P.2d at 233.
As discussed above, several other jurisdictions have likewise decided
to disallow an independent tort for evidence spoliation. In summarizing
its decision, the Texas Supreme Court stated:
This Court treads cautiously when deciding whether to recognize a new
tort. While the law must adjust to meet society's changing needs, we
must balance that adjustment against boundless claims in an already
crowded judicial system. We are especially averse to creating a tort
that would only lead to duplicative litigation, encouraging
inefficient relitigation of issues better handled within the context
of the core cause of action. We thus
decline to recognize evidence spoliation as an independent tort.
Trevino, 969 S.W.2d at 951-52. The Mississippi Supreme Court observed, "as
the California courts have leaned after 14 years of experience with this
tort, any benefits obtained by recognizing the spoliation tort are
outweighed by the burdens imposed." Richardson, 847 So. 2d at 824.
Notwithstanding the important considerations favoring the recognition
of an independent tort of spoliation by parties to litigation, we are
persuaded that these are minimized by existing remedies and outweighed by
the attendant disadvantages. We thus determine the common law of Indiana
to be that, if an alleged tortfeasor negligently or intentionally destroys
or discards evidence that is relevant to a tort action, the plaintiff in
the tort action does not have an additional independent cognizable claim
against the tortfeasor for spoliation of evidence under Indiana law.
It may well be that that the fairness and integrity of outcome and
the deterrence of evidence destruction may require an additional tort
remedy when evidence is destroyed or impaired by persons that are not
parties to litigation and thus not subject to existing remedies and
deterrence. But the certified questions are directed only to first-party
spoliation, and we therefore decline to address the issue with respect to
third-party spoliation.
Conclusion
We answer the first certified question in the negative: Indiana law
does not recognize a claim for "first-party" negligent or intentional
spoliation of evidence. It is thus unnecessary to answer the second
question.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] Spoliation as an independent tort was discussed in Burton v.
Estate of Davis, 730 N.E.2d 800 (Ind. Ct. App. 2000), but this opinion was
automatically vacated by the Indiana Supreme Court's grant of transfer.
Indiana Appellate Rule 58(A). The parties thereafter reached a settlement
and sought dismissal of the appeal. Finding that the settlement rendered
the appeal moot, we granted the dismissal, expressly noting that the
"opinion of the Court of Appeals remains vacated and held for naught."
Burton v. Estate of Davis, 740 N.E.2d 850, 851 (Ind. 2000).