Justice SUTTELL,
dissenting.
Although I agree with the majority that some form of an instruction on spoliation was appropriate in this case, and indeed virtually required by our decision in Mead v. Papa Razzi Restaurant, 840 A.2d 1103 (R.I.2004) (Mead I), I believe that the instruction given was erroneous and represents an unwarranted expansion of the doctrine of spoliation. Accordingly, I would vacate the judgment and remand for a new trial.
The doctrine of spoliation is an ancient principle that traces its roots to Roman law. This Court has commented that under the doctrine omnia praesumuntur contra spoliatorem,8 “the destruction of relevant evidence by a party to litigation may give rise to an inference that the destroyed evidence would have been unfavorable to the position of the spoliating party.” Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I.1996). This adverse inference is predicated on two rationales, one evidentiary and one prophylactic. The former “is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document.” Nation-Wide Check Corp. v. Forest Hills Dis*447tributors, Inc., 692 F.2d 214, 218 (1st Cir.1982). The prophylactic or punitive rationale, on the other hand, is designed to deter parties from destroying relevant evidence before it can be introduced at trial. Id.
Before an adverse inference can arise from the destruction of evidence, “the party having control over the evidence must have had an obligation to preserve it at the time it was destroyed.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998). Such an obligation almost certainly arises when suit has been filed, but also may exist when a party should have known that the evidence may be relevant to future litigation. Id. This Court articulated this principle in Tancrelle v. Friendly Ice Cream Corp., 756 A.2d 744 (R.I.2000), when we observed, “[a]n ‘obligation to preserve evidence even arises prior to the filing of a complaint where a party is on notice that litigation is likely * * *.’ ” Id. at 749 (quoting Conderman v. Rochester Gas & Electric Corp., 180 Misc.2d 8, 687 N.Y.S.2d 213, 217 (Sup.Ct.1998)).
The essence of spoliation, as I perceive it, is “the deliberate or negligent destruction of relevant evidence,” Tancrelle, 756 A.2d at 749, or the unexplained failure to produce such evidence, Kurczy v. St. Joseph Veterans Association, Inc., 820 A.2d 929, 947 (R.I.2003); a priori, tangible evidence must at one time exist and then either be destroyed or made unavailable. Indeed, this Court has made clear that a jury first must find that the necessary evidence existed before it is permitted to draw an adverse inference from the absence of such evidence at trial. For example, in Rhode Island Hospital Trust National Bank, 674 A.2d at 1230, 1234, in which the plaintiff “routinely tape-recorded some telephone conversations,” we remarked that the defendant “was entitled to present to the jury evidence that a recording may have existed but was subsequently destroyed.” Also, in Kurczy, 820 A.2d at 947, we considered the unavailability of the defendant’s board-meeting minutes notwithstanding its routine practice of retaining such minutes, and held that “the trial justice properly instructed the jury that it must first find that defendant either deliberately or negligently caused the board-meeting minutes to be unavailable before it decided whether to draw an adverse inference that the missing evidence could have been unfavorable to defendant.” Likewise, in Mead I, 840 A.2d at 1108, we explained: “In light of testimony that defendants systematically prepared and retained such documents in accordance with corporate policy, it is an issue of fact whether the incident report was prepared. Without a satisfactory explanation that such a report never existed, the jury should be permitted to infer that its production would have had adverse consequences for defendants.” The presumption underlying our case law is that, for a party to be branded a spoliator, relevant evidence at one point must have existed that could have been spoliated.
In the case under review, I believe the following segments of the trial justice’s instruction constitute reversible error:9
*448“If you find that Back Bay Restaurant Group had information and/or documentation regarding the incident which it failed to record contrary to its corporate policy, which should have been recorded immediately following the incident, then you are permitted to infer in your consideration of the evidence that it would have been unfavorable to the defendants’ position in this case.
“For example, if you find that Back Bay Restaurant Group and/or its employees would have had information regarding the incident or the liquid on the floor and failed to memorialize it in the required accident report, or had an accident report and lost or destroyed it, you are permitted to infer in your consideration of the evidence that that information and/or documentation would have been unfavorable to defendant.”
The instruction does not charge the jury to find as “an issue of fact whether the inei-dent report was prepared,” as provided in Mead I, 840 A.2d at 1108, nor does it require the jury to determine whether defendant presented “a satisfactory explanation that such a report never existed.” Id. Rather, the instruction allows the jury to draw an adverse inference from the mere failure to prepare the required accident report, no matter what the reason. This, in my view, is not consistent with Mead I and is a significant expansion of the doctrine of spoliation.
A review of the record reveals the presence of evidence from which the jury might find that defendant offered a reasonable explanation for failing to produce an accident report about the incident. Doctor Mead testified that he gave only his name, address, and telephone number to a restaurant employee who approached him with a clipboard with an “official-looking form on it.” Understandably, Dr. Mead declined to provide more details at *449the time, but invited the employee to telephone him later. Similarly, Mrs. Mead provided only her name and address before she was taken out of the restaurant by the emergency medical personnel. She said that she was not contacted afterward by anyone on behalf of the restaurant about the incident.
Karen Eaton, a loss prevention manager for defendant Back Bay Restaurant Group, testified that, realistically, accident reports are not always prepared, although it is corporate policy to do so for incidents involving an injury to a guest. For example, an accident report is not always generated, she explained, if a patron suffers a heart attack, stroke, or similar injury requiring emergency medical assistance. Moreover, Ms. Eaton testified that she had a specific recollection that an accident report chronicling this incident never was prepared. Supporting this proposition, in their respective depositions that were read into the record at trial, Anne Marie Lagrotte-ria, vice-president of operations and training, and Joseph Paul Dunleavy, a regional manager for Back Bay Restaurant Group, both testified that they never saw an accident report concerning the incident in question.
From the testimony of Ms. Eaton, Ms. Lagrotteria, and Mr. Dunleavy, the jury could have found that an accident report never existed. The jury was free to reject their testimony, and may well have done so, particularly in light of the trial justice’s comments at the hearing on the defendants’ Super.R.CivJP. 50 motion that Ms. Eaton was defensive, inconsistent, unresponsive, and cavalier. Conversely, as the majority opinion implies, the record provided evidence from which the jury could have found that an accident report was generated. However, the trial justice’s instructions failed to adequately apprise the jury of its obligation to find that an accident report was, in fact, prepared before it was permitted to draw any adverse inferences from the defendants’ failure to produce such a report.
In this case, no evidence whatsoever was introduced to explain how the liquid came to be on the floor, how long it had been there before Mrs. Mead fell, or whether the defendants had any actual or constructive notice of its presence. It is difficult to discern a factual predicate for the defendants’ liability other than by drawing an adverse inference from their failure to produce an accident report. A necessary precursor to the jury’s ability to draw such an adverse inference, however, was a determination that an accident report at one time existed. Lacking that factual predicate, the majority’s endorsement today of the trial justice’s instruction, in effect, commandeers the doctrine of spoliation to enforce, with severe consequences, a corporate policy of creating accident reports. Because I believe that the jury instruction permitted the jury to draw negative inferences merely from the defendants’ failure to memorialize the information, I respectfully dissent.
. The Latin maxim translates, "all things are presumed against a despoiler.” Rhode Island Hospital Trust National Bank v. Eastern General Contractors, Inc., 674 A.2d 1227, 1234 (R.I.1996).
. The trial justice’s complete charge on spoliation was as follows:
"When evidence is lost or destroyed, either intentionally or negligently, we call it spoliation of the evidence. Under certain circumstances, the spoliation of evidence may give rise to an adverse inference that the spoliated evidence would have been unfavorable to the position of the party who lost or destroyed it.
"Spoliation of evidence may be innocent or intentional or it can be somewhere in between the two. It is the unexplained loss or destruction of relevant evidence that gives rise to an inference that the evidence *448lost or destroyed would have been unfavorable to the position of the spoliator.
“If you find that Back Bay Restaurant Group had information and/or documentation regarding the incident which it failed to record contrary to its corporate policy, which should have been recorded immediately following the incident, then you are permitted to infer in your consideration of the evidence that it would have been unfavorable to the defendants’ position in this case.
"For example, if you find that Back Bay Restaurant Group and/or its employees would have had information regarding the incident or the liquid on the floor and failed to memorialize it in the required accident report, or had an accident report and lost or destroyed it, you are permitted to infer in your consideration of the evidence that that information and/or documentation would have been unfavorable to defendant.
“Similarly, if you find that defendant lost or destroyed daily sanitation checklists for the date of the incident, you may infer in your consideration that that evidence similarly would have been unfavorable to the defendants’ position in this case.
"In deciding whether the loss of evidence, information, accident report or sanitation checklist was deliberate, you may consider all of the facts and circumstances which were proved at trial and which are pertinent to that item of evidence.
"You may consider who lost, destroyed or failed to record it, how it was lost, destroyed or failed to be recorded, the legitimacy or lack thereof, the destruction or failure to record, whether the individual losing, destroying or failing to record the evidence knew the evidence might be supportive to the opposing party, whether the spoliation was intended to deprive the Court of evidence, as well as other facts and circumstances which you find to be true.
"You may also consider the extent to which it has been shown that the spoliated evidence would have been unfavorable to defendants’ position.
"If the spoliation of the evidence is attributable to carelessness or negligence on the part of the spoliator, you may consider whether the carelessness or negligence was so gross as to amount to a deliberate act.”