Since I brought it up last post, I thought now would be a good time to discuss “spoliation of evidence.” And, yes, it is ”spoliation” and not “spoilation.” In any case, Findlaw’s Legal Dictionary defines “spoliation” as:
1: the destruction, alteration, or mutilation of evidence esp. by a party for whom the evidence is damaging
2: alteration or mutilation of an instrument (as a will) by one who is not a party to the instrument
This post concerns the first definition. Specifically, what will a Nevada Court do when a party loses or destroys evidence negligently or intentionally?
Nevada Revised Statutes (NRS) 47.250 allows for disputable presumptions to be made by a Jury in certain situations. The list includes a presumption “[t]hat evidence willfully suppressed would be adverse if produced.” The list provided by that Statute “is illustrative, not exclusive.” See, Privette v. Faulkner, 92 Nev. 353, (1976).
Spoliation of Evidence
The Nevada Supreme Court recently addressed the issue of spoliation of evidence in Bass-Davis v. Davis, 134 P.3d 103, Nev. Adv. Op. 39 (2006). In that case the Court clarified the differences in the Trial Court’s treatment of evidence that is “willfully suppressed” and evidence that is “negligently lost or destroyed”. Where the evidence is willfully suppressed, NRS 47.250(3) applies and a disputable (or rebuttable) presumption is made: when the evidence is negligently lost or destroyed, an adverse inference applies. As noted in the last post, our office requests that video tapes (and other information) be given to us or retained for litigation when we first become involved in a case to avoid any allegations by the adverse party that they did not know a claim or lawsuit might be made in the future. In addition, these itmes should be sought during Discovery through the use of Requests for Production, Depositions and the use of subpoena power. Where the items are not produced, especially when they are being willfully suppressed, Motions to Compel before the Discovery Commissioner will be required.
Below you will find an extensive quote from Bass-Davis giving the rationale for the various treatments when evidence is lost or destroyed as well as prior case Nevada case law and a comparison of the treatments in two cases. I hope this helps you understand spoliation of evidence and the effects it can have on the outcome of case. The Statute and the Court’s ruling aim at fairness. They mean to punish those who act intentionally to a greater degree than thos who act negligently.
Here’s what the Court said in Bass-Davis (footnotes and citations omitted):
The district court has broad discretion to settle jury instructions, and its decision to give or decline a proposed jury instruction is reviewed for an abuse of that discretion. Notwithstanding this significant latitude, it is well established that “‘a party is entitled to have the jury instructed on all of h[er] case theories that are supported by the evidence.’” Additionally, other courts have held that a trial court’s decision on whether to impose sanctions-including an adverse inference instruction-for the destruction or spoliation of evidence, is committed to the trial court’s discretion. Thus, if the district court, in rendering its discretionary ruling on whether to give an adverse inference instruction, “has examined the relevant facts, applied a proper standard of law, and, utilizing a demonstratively rational process, reached a conclusion that a reasonable judge could reach,” affirmance is appropriate.
When evidence is willfully suppressed, NRS 47.250(3) creates a rebuttable presumption that the evidence would be adverse if produced. Other courts have determined that willful or intentional spoliation of evidence requires the intent to harm another party through the destruction and not simply the intent to destroy evidence. We agree.
Thus, before a rebuttable presumption that willfully suppressed evidence was adverse to the destroying party applies, the party seeking the presumption’s benefit has the burden of demonstrating that the evidence was destroyed with intent to harm. When such evidence is produced, the presumption that the evidence was adverse applies, and the burden of proof shifts to the party who destroyed the evidence. To rebut the presumption, the destroying party must then prove, by a preponderance of the evidence, that the destroyed evidence was not unfavorable. If not rebutted, the fact-finder then presumes that the evidence was adverse to the destroying party.
Unlike a rebuttable presumption, an inference has been defined as “[a] logical and reasonable conclusion of a fact not presented by direct evidence but which, by process of logic and reason, a trier of fact may conclude exists from the established facts.” Although an inference may give rise to a rebuttable presumption in appropriate cases, an inference simply allows the trier of fact to determine, based on other evidence, that a fact exists. An inference is permissible, not required, and it does not shift the burden of proof.
What if evidence is lost or destroyed?
As the rebuttable presumption in NRS 47.250(3) applies only when evidence is willfully suppressed, it should not be applied when evidence is negligently lost or destroyed, without the intent to harm another party. Instead, an inference should be permitted. As recognized by the Maryland Court of Special Appeals, “[a]n intentional or willful destruction of the evidence could support a presumption unfavorable to the [destroyer]; however, the mere inability to produce the [evidence] would support an adverse inference rather than a presumption.”
The logic behind the adverse inference for evidence lost or destroyed through negligence was appositely explained in Turner v. Hudson Transit Lines, Inc.:
Generally, in cases based on negligently lost or destroyed evidence, an adverse inference instruction is tied to a showing that the party controlling the evidence had notice that it was relevant at the time when the evidence was lost or destroyed. In other words, when presented with a spoliation allegation, the threshold question should be whether the alleged spoliator was under any obligation to preserve the missing or destroyed evidence. The duty to preserve springs from a variety of sources, including ethical obligations, statutes, regulations, and common law. Courts, including this court, that adhere to a common-law duty to preserve evidence have held that a party is required to preserve documents, tangible items, and information relevant to litigation that are reasonably calculated to lead to the discovery of admissible evidence. Thus, the prelitigation duty to preserve evidence is imposed once a party is on “notice” of a potential legal claim. While few courts have expounded on the concept of notice, those that have conclude that a party is on notice when litigation is reasonably foreseeable.
For example, in Testa v. Wal-Mart Stores, Inc., the First Circuit Court of Appeals upheld a trial court’s decision to issue an adverse inference instruction when the defendant could not account for certain records. In that case, in the process of delivering merchandise to the defendant, the plaintiff slipped on a snow-and-ice-coated delivery ramp, fell, and injured himself. The defendant made a detailed report of the accident and took photographs, which were later destroyed. At the time when the accident occurred, the plaintiff had threatened to sue. The trial court instructed the jury that it could (but need not) draw a negative inference from the missing evidence. On appeal, the First Circuit reasoned that, HN9 although evidence of good faith compliance with an established corporate document retention policy was relevant to the jury’s inquiry, the introduction of such evidence was insufficient to defeat the permissive inference instruction. Instead, because the jury could reasonably conclude, based on the evidence presented, that the defendant had notice of the plaintiff’s claim and the missing records’ relevance to that claim, the adverse inference could be drawn. We agree with the reasoning set forth in Turner and Testa.
What if evidence was willfully destroyed?
Our prior case law, however, has not differentiated between a rebuttable presumption for willful destruction and a permissible inference for negligently lost or destroyed evidence. In Reingold v. Wet ‘n Wild Nevada, Inc., we approved of an adverse inference instruction while concluding that the evidence at issue was willfully destroyed. In that case, the plaintiff was injured while exiting a Wet ‘n Wild pool, and, although the plaintiff requested Wet ‘n Wild’s records relating to prior accidents, Wet ‘n Wild failed to produce them because it routinely destroyed records at the end of each season. At trial, the plaintiff requested a jury instruction on which Bass-Davis based her proposed Instruction C in the instant case:
The district court refused to give the instruction, finding no evidence of Wet ‘n Wild’s willful suppression of evidence, as required for an adverse presumption to apply under NRS 47.250(3), and the plaintiff appealed.
This court, using two different rationales, determined that the district court committed reversible error by refusing the instruction. First, this court concluded that, under NRS 47.250(3), Wet ‘n Wild had willfully suppressed the documents because it intentionally destroyed its records each season: “[d]eliberate destruction of records before the statute of limitations has run on the incidents described in those records amounts to suppression of evidence.” Second, this court noted that at common law, when relevant evidence is destroyed, the jury is permitted to draw an adverse inference from the destruction.
Unfortunately, Reingold failed to differentiate between negligently lost or destroyed evidence and willfully suppressed evidence. As stated above, willful suppression or destruction, which triggers the rebuttable presumption under NRS 47.250(3), requires more than simple destruction of evidence and instead requires that evidence be destroyed with the intent to harm another party.
Consequently, Reingold did not involve a willful suppression of evidence, and we overrule the portion of Reingold that equates willful suppression with destruction of records that, while deliberate, is not done with the intent to harm another party. Instead, the evidence in Reingold was destroyed in accordance with a routine records destruction policy, and no intent to harm the opposing party was shown. Since, however, the plaintiff suffered a broken hip and left the park in an ambulance, the prospect of litigation was reasonably foreseeable. Wet ‘n Wild destroyed potentially relevant records without any particularized inquiry. Therefore, the records destruction in Reingold was negligent. Although Reingold involved negligent, and not willful destruction of evidence, it correctly determined that the district court should have given an adverse inference instruction.
The instant case similarly involves evidence lost through negligence, and thus, the district court should have given the adverse inference instruction, proffered as proposed Instruction C, or should have imposed another appropriate sanction. Given that Bass-Davis’ sister had requested the videotape shortly after Bass-Davis’ fall, the franchisees had sufficient notice of Bass-Davis’ potential claims. Thus, they were negligent in failing to preserve the evidence. Though the franchisees did not lose the evidence themselves, they provided the evidence to Southland, which forwarded it to its insurer, where it was lost. Since the franchisees were required to transmit this evidence under corporate policy, both Southland and its insurer were the franchisees’ agents with respect to the lost evidence. The law of agency typically will allow the court to impute sanctions to a party for its agent’s actions. Here, therefore, the negligence associated with losing the evidence is properly imputed to the franchisees.