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Spoliation: The Destruction of Evidence

A court can punish a party that destroys evidence

Spoliation: Noun: “Destruction of a thing by the act of a stranger, as the erasure or alteration of a writing by the act of a stranger:”
Spoliator: “A spoiler or destroyer.”  (Black’s Law Dictionary Revised 4th edition)

So what does it mean? Missing evidence is usually what it means.  And the missing evidence can be at the hand of a party or a stranger.

Some states recognize Spoliation as a separate cause of action.  Arizona does not.  Arizona does recognize that the spoiler (spoliator) can have missing evidence held against him at trial by an adverse jury instruction basically telling the jury to consider the motive for destroying the evidence.

Arizona does not recognize this cause of action for many reasons.  Think about the usual car accident.  The cars get towed away.  They either get repaired or parted out and destroyed.  Photographic evidence usually tells us what we need to know.  But think about the car accident caused by a defective car part such as the ignition switch in the GM recall that involved millions of vehicles.  By the time people realized there was a reason the car stalled, the car was repaired or destroyed, so how do you prove your case?  You can show that the car in question fell within the recall and surmise from there that the stall came from the ignition switch.  For obvious reasons, every car involved in an accident can’t be preserved until any possible lawsuit is dealt with.

But what if a party to a case destroys evidence knowing that it will be important to a case?   Referring to the example above, what if the car in question got towed to a GM dealer for repair.  The dealer checks the recall notice and sees the car falls within the range and as part of the recall effort the switch is changed out during the repairs.  Spoliation? Probably not as there was no intent to do anything wrong.  The dealer was only following a recall order and doing what he was told to do.

Let’s take is one step further:  GM is put on notice that the car owner believes the stall was caused by the defective ignition switch and GM and the dealer are asked to preserve the switch for inspection.  The dealer changes out the switch, but it gets tossed into the trash with other bad parts.  Probably an innocent mistake, but this puts forth the possibility that the court may issue an adverse jury instruction to tell the jury that they need to consider that GM and the dealer were put on notice to preserve the switch, and did not do it.  The jury can then consider whether GM had a motive for doing that, the motive being the switch would have been proven to be defective.

In Arizona, it is a balancing test for the Court.  The Court has broad discretion to grant or deny the motion for an adverse jury instruction.  Unless the destruction was intentional, and done for an evil purpose, the instruction probably will not be given.

When in doubt, preserve the evidence.  It is the safe way to proceed.

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