Spoliation of Evidence

It always amazes me how quick evidence can disappear when you finally get close to the smoking gun in a case.  Spoliation of evidence is a severe problem in both personal injury and domestic cases.  Bank records disappear, Facebook items disappear, and all other sorts of items.  This is an issue that often times needs to be pushed.  They are a multitude of remedies for spoliation including striking experts, entry of a default judgment against other party, and jury instructions that the evidence would be favorable to the other party. 

In Mississippi, some courts have concluded that only the intentional spoliation of evidence by a party will give rise to an inference that the evidence destroyed was unfavorable to the party responsible for the destruction. Tieken v. Clearing Niagara, Inc., 1997 WL 88180 (N.D. Miss. 1997) (stating that such an inference arises “only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth . . . .”) (citing Wilson v. State, 661 So. 2d 1109, 1115 (Miss. 1993)(Smith, J., dissenting) (quoting Washington v. State, 478 So. 2d 1028, 1032 (Miss. 1985)); Stahl v. Wal-Mart Stores, Inc., 47 F. Supp. 2d 783, 786 (S.D. Miss. 1998). Accord Estate of Perry v. Mariner, 927 So. 2d 762, 767 (Miss. App. 2006); Mississippi Dept. of Transp. v. Trosclair, 851 So. 2d 408, 415 (Miss. App. 2003) (citing Stahl and finding that intentional conduct is necessary for an adverse inference); Cox v. State, 849 So. 2d 1257, 1266 (Miss. 2003) (criminal case).

However, a showing of intentional misconduct and bad faith should not put too heavy a burden upon a litigant seeking an adverse inference instruction.  As explained by the Mississippi Supreme Court:

“Requiring an innocent litigant to prove fraudulent intent on the part of the spoliator would result in placing too onerous a burden on the aggrieved party.  To hold otherwise would encourage parties with weak cases to “inadvertently” lose particularly damning evidence and then manufacture “innocent” explanations for the loss.  In this way, the spoliator could essentially destroy evidence and then require the innocent party to prove fraudulent intent before the destruction of the evidence to be used against it.”

  Thomas v. Isle of Capri Casino, 781 So. 2d 125, 133 (Miss. 2001). See DeLaughter v. Lawrence County Hosp., 601 So. 2d 818, 822 (Miss. 1992) (stating that when medical record is unavailable due to negligence, "an inference arises that the record contained information unfavorable . . . and the jury should be so instructed”); Young v. Univ. of Miss. Med. Center, 914 So. 2d 1272, 1277 (Miss. App. 2005) (“finding of spoliation may be supported by intentional or negligent destruction of evidence”).  On that same note, a court cannot simply take spoliators at their word that there was nothing of consequence on a piece of destroyed evidence.  Doing so would create a rule that evidence be viewed in the light most favorable to the spoliator.  The law does not require this.  Further, doing so would give litigants an incentive to destroy evidence. 

 

As someone once told me, no one losses favorable evidence.  Several cases I have had resolved quickly once spoliation issues came to light.  Logically if an adverse inference instruction can be given to the jury in these circumstances, a chancellor should be allowed to make an adverse inference in a domestic case if information is lost under similar circumstances.