News & Thought Leadership from Sulloway & Hollis

April 18, 2018

The Missing Evidence Problem

Missing evidence can complicate your defense in any given case. What can you do when this happens? Is the doctrine of spoliation an option?

Accidents and injuries occur every day. A subset of those incidents become lawsuits. Sometimes the people and companies who end up party to those lawsuits are aware of an incident when it occurs, but other times they are not. What if you find yourself in the latter of the two and evidence that could explain the cause of the incident is missing? What are your options?

One of the most common tools to deal with this situation in litigation is the doctrine of spoliation. The premise is simple; when a party negligently or intentionally destroys or loses relevant evidence, the culpable party should be held accountable for any unfairness or prejudice that results. Every jurisdiction treats the doctrine of spoliation a little differently and some bodies of law are more well developed than others. For example, the range of available remedies differs. Massachusetts and New Hampshire are good examples of these differences.

In Massachusetts, the doctrine of spoliation is only available against a party who negligently or intentionally loses or destroys evidence. See Scott v. Garfield, 454 Mass. 790, 798, 912 N.E.2d 1000 (2009). Spoliation “does not include a fault-free destruction or loss of physical evidence.” Kippenhan v. Chaulk Services, Inc., 428 Mass. 124, 127, 697 N.E.2d 527 (1998). Spoliation can occur before or after a lawsuit is filed. See id. This rule applies to both parties and their experts. See Nally v. Volkswagen of Am. Inc., 405 Mass. 191, 539 N.E.2d 1017 (1989). If a party negligently or intentionally loses or destroys evidence and the absence of the evidence would unfairly prejudice an opposing party, then Massachusetts allows a wide range of remedies:

“In a case involving spoliation, exclusion of evidence both sanctions the party responsible for destroying certain evidence and remedies the unfairness that such spoliation created. But exclusion is not the sole remedy. Indeed, Massachusetts affords a greater range of remedies for spoliation than the majority of jurisdictions, which limit relief to permitting an adverse inference against the responsible party. The spectrum of remedies includes allowing the party who as been aggrieved by the spoliation to present evidence about the preaccident condition of the lost evidence and the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from spoliation.” Gath v. M/A-Com, Inc., 440 Mass. 482, 488, 802 N.E.2d 521 (2003) (internal citations omitted).”

Massachusetts courts even use the sanction of default on issues in a lawsuit. See Keene v. Brigham and Women’s Hosp., Inc., 439 Mass. 223, 237, 786 N.E.2d 824 (2003).

New Hampshire treats the doctrine of spoliation differently and there are fewer decisions defining the contours of the doctrine. The case law allows an adverse inference instruction, i.e., that the missing evidence would have been unfavorable to the culpable party. See Rodriguez v. Webb, 141 N.H. 177, 180, 680 A.2d 604 (1999). In New Hampshire Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 434, 969 A.2d 351 (2009), the Supreme Court of New Hampshire restated the standard as follows:

“[T]he trial court may grant a party’s request for an adverse inference instruction if the evidence establishes: ‘(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense … If, however, there remains a question of fact as to any of the three factors, spoliation is a matter for the jury, not the judge.”

The timing of the loss or destruction of evidence is not dispositive of the issue of intent and a court can employ the adverse inference instruction where the act occurs before a claim is made. See Murray v. Developmental Services of Sullivan County, Inc., 149 N.H. 264, 271, 818 N.H. 302 (2003).

Whatever the jurisdiction you find yourself in, you will want to position yourself to use the doctrine of spoliation, if appropriate. Some considerations are:

  • When did the evidence go missing and why did it happen? Was it a fault-free accident, negligence, or intentional? The answer to this question will impact whether you are entitled to a remedy at all or, if a party is culpable for the loss, the scope of available remedies. Generally, the standard is would a reasonable person in the alleged spoliator’s position realize (at the time of loss or destruction) the possible importance of the evidence to the resolution of the dispute or claim? If you are dealing with an individual plaintiff, there are not many guidelines to follow, so if you suspect that a plaintiff or a plaintiff’s agent/representative (such as an expert) has lost or destroyed evidence, it is necessary to inquire into all of the details surrounding the missing evidence. If you are dealing with a defendant, the same rules apply. Look at the circumstances; however, there are some more well-defined guideposts available, such as the receipt of a demand letter, a request for preservation, a threat of litigation, or a decision to pursue a claim.
  • Why is the missing evidence relevant to your claim or defense? What are elements of the legal theory against you or your client? Factually, what do you need to respond to the claims or to prove an affirmative defense? If you are relying on expert opinion, what information does your expert need? For example, Gath v. M/A-Com, Inc. involved a premises liability claim, which had a notice element. That Court concluded that the missing evidence, in that case, was relevant to an essential element of the case and justified the trial court’s spoliation sanction. You need to be able to explain what the missing evidence would provide and why that gap is unfair to you or your client in the litigation. You may need an affidavit from your expert. This is a fact-dependent issue.
  • Timing of a spoliation motion? There is no universal answer to this question. Because every jurisdiction is different, it is important to consult local rules and case law on the subject to determine if there is a specific point during the litigation in which you must raise the doctrine of spoliation. If not, this is a tactical issue that will vary from case to case. It may be appropriate to bring it up during discovery, as part of a Motion for Summary Judgment, or in a pre-trial Motion in Limine.
  • Are there specific laws or regulations that could impact the application of the doctrine of spoliation? Sometimes there are laws that create an obligation to preserve documents or evidence. These obligations are too case-specific to provide a list; however, Keene v. Brigham and Women’s Hosp., Inc. provides an example of a court’s willingness to consider a statutory obligation to preserve records in analyzing and upholding a trial court’s spoliation order.

This is not an exhaustive discussion of the doctrine of spoliation in Massachusetts, New Hampshire, or in any other jurisdiction. The application of the doctrine of spoliation, as with so many areas is limitation, is case specific.