“Spoliation” of evidence occurs when a party with an obligation to preserve evidence in a court case fails to do so. A failure to preserve evidence can take many forms: destroying the evidence, damaging it, or altering it. When spoliation occurs, the party responsible may be held accountable in court through a variety of different sanctions.
If a court finds spoliation has occurred, it can impose sanctions as it deems warranted – from monetary sanctions to shifting the burden of proof on certain issues at trial, to instructing the jury regarding inferences it may draw about the lost evidence. If the spoliation is considered egregious enough, it can result in a default judgment being entered against the responsible party. Avoiding spoliation is obviously important, but what exactly is it?
Recently, the Washington Court of Appeals issued an opinion identifying what spoliation isn’t. In Cook v. Tarbert Logging, Inc. , the court held that pre-lawsuit behavior doesn’t amount to spoliation if it is done in good faith, even if that behavior results in destruction of evidence.
The facts of Cook are instructive: In February 2009, Raymond Cook was driving his pickup truck when he was involved in an accident with an employee of Tarbert Logging. A few months later, Cook hired a lawyer and an expert to examine his truck. The expert took photographs and measurements but did not access the truck’s airbag control monitor, which might have provided information about the speed of the truck at the moment of the crash.
Almost two years after the accident, Cook filed a lawsuit against Tarbert Logging and the county government. A year later, the county’s attorney asked to inspect Cook’s truck. But by this time the truck had been sold for parts—either before or after the lawsuit was filed (the evidence was not conclusive on this).
At trial, the defendants argued that Cook had breached a duty to preserve the truck as evidence. As a sanction for the alleged spoliation, the defendants asked the court to impose an inference that the truck’s airbag-control monitor would have shown that Cook was speeding at the time of the accident.
The trial court agreed that Cook had committed spoliation of evidence, because Cook was “aware of [the] importance and relevance” of the truck to his case. The court did not, however, find that the destruction of the truck was “purposeful and intentional.”
The Court of Appeals disagreed: instead, it concluded that Washington law imposes no general duty to preserve evidence before a lawsuit is filed. Even where litigation is foreseeable, destruction or loss of documents in itself is not spoliation. For the court-sanctionable act of spoliation to occur before a lawsuit is filed, there must be some bad-faith intent to “get rid of the evidence.” Because the trial court had found that Cook’s destruction of the truck had not been purposeful and intentional (i.e., in bad faith), the destruction was not spoliation.
Brandi B. Balanda
Brandi has wide-ranging experience successfully litigating large, complex cases, from defending a senior executive against the largest trade secret claim asserted in Washington to prosecuting fraud, contract, and fiduciary duty claims related to the financing of major real estate development projects.