The Journal of The DuPage County Bar Association

Back Issues > Vol. 17 (2004-05)

Northern’s Exposure
Evidence, What Evidence? Spoliation and Implications For Third Parties
By Lisa M. Psaute

Spoliation of evidence is defined as "the intentional destruction, mutilation, alteration, or concealment of evidence."2 A national survey of practicing attorneys revealed that "one half of litigators believe that ‘unfair and inadequate disclosure of material information prior to trial [is] a regular or frequent problem.’"3 Litigants and potential litigants can be subjected to criminal penalties, discovery sanctions, adverse jury inferences, and evidentiary presumptions.4 Unfortunately, as many legal analysts have pointed out, these consequences have little impact on third parties to preserve evidence material to civil suits.5 However, the Illinois Supreme Court currently recognizes a cause of action for negligent spoliation, which may subject a third party to liability for negligently destroying or altering evidence in limited circumstances.6 The following article discusses the possible consequences for spoliation of evidence and their potential impact on third parties.

II. Criminal Penalties

In Illinois, any person, third parties included, could face criminal penalties for the alteration or destruction of evidence in a criminal case. According to 720 ILCS 5/31-4, a person obstructs justice when he knowingly "[d]estroys, alters, conceals or disguises physical evidence….with intent to prevent the apprehension or obstruct the prosecution or defense of any person."7 Obstruction of justice is a class 4 felony and an offender could be imprisoned for up to six years.8 However, in the civil context, the criminal penalty carries little weight as neither litigants nor third parties have been subject to criminal sanctions for the spoliation of evidence in a civil suit.9 Accordingly, discovery sanctions, adverse jury inferences, and evidentiary presumptions remain the primary deterrents to the destruction or alteration of evidence in a civil action.10

III. Discovery Sanctions

Under Illinois Supreme Court Rule 219(c), a trial court may impose a sanction upon any party who unreasonably refuses to comply with any discovery rule or order entered pursuant to the Supreme Court Rules.11 Under the rule, the court has the power to order: a stay of further proceedings pending compliance; a default, barring further pleading relating to the issue; dismissal of a claim or counterclaim relating to that issue; the exclusion of testimony relating to the issue; that any relevant portion of the offending party’s pleadings be stricken and judgment entered as the issue; and a default judgment or dismissal against the offending party.12 A trial court considers the following factors to determine what sanction to apply: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence.13

Accordingly, any alteration or destruction of relevant or material evidence, including testing determined to be destructive, could subject litigants to crippling discovery sanctions.14 Going a step further, in Shimanovsky v. General Motors, the Illinois Supreme Court held that even a "potential" litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence, reasoning that if it were unable to sanction a party for pre-suit destruction of evidence, a party could avoid liability by simply destroying the evidence.15

However, discovery sanctions, though a drastic and effective deterrent for litigants and potential litigants, have little effect on third parties as the party must be a litigant or a potential litigant in the underlying suit in order to warrant sanctions.16 Indeed, the Illinois Supreme Court recently declined to characterize an insurance company as a potential litigant even though its agent authorized the repair of an insured’s sidewalk, the subject of a potential premise liability claim.17

IV. Adverse Jury Inferences and Evidentiary Presumptions

In certain circumstances, the destruction of evidence warrants an adverse jury inference.18 The Illinois Pattern Jury Instructions provide that if a party to a case fails to offer evidence within his/her power to produce, the jury may infer that the evidence would be adverse to that party if they believe: (1) the evidence was under the control of the party and could have been produced by the exercise of reasonable diligence; (2) the evidence was not equally available to an adverse party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed it to be favorable to him; and (4) no reasonable excuse for the failure is shown.19

Additionally, if a party deliberately destroys a written instrument and the contents become an issue in a matter between the spoliator and an innocent party, a presumption will arise that the contents of the instrument were unfavorable to the spoliator.20 However, if the evidence is not intentionally altered or destroyed but is the result of accident or negligence, the presumption does not prevail.21

As with discovery sanctions, adverse inferences and evidentiary presumptions have a direct impact on the litigants to the current suit but do little to encourage third parties to preserve evidence. In order to warrant the adverse inference or evidentiary presumption the evidence must either be under the control of a party to the suit22 or the spoliator must be a party to the suit.23

V. Negligent Spoliation

While discovery sanctions, evidentiary presumptions, and adverse inferences tend to penalize only the parties or potential parties to a lawsuit, third parties could be liable for the destruction or alteration of evidence under a standard negligence theory.24 In 1995, the Illinois Supreme Court was called upon in Boyd v. Travelers Insurance Company to determine whether Illinois courts would recognize a separate cause of action for negligent spoliation of evidence.25 While the court opined that adequate remedies for the destruction of evidence already existed and a new tort need not be created, the court held an action for negligent spoliation could be brought under existing negligence law and outlined a potential plaintiff’s cause of action.26

In Boyd, the plaintiff, Tommie Boyd, made use of a propane heater to keep warm while working inside his employer’s van and sustained serious injuries when propane gas allegedly escaped from the heater and ignited an explosion.27 Boyd filed a claim for worker’s compensation benefits with his employer and Travelers Insurance Company, his employer’s insurer.28 Thereafter, Travelers took possession of the heater in order to investigate the claim and stored the heater in an office closet.29 Boyd then brought a product liability action against the manufacturer and sought the return of the heater from Travelers.30 When Travelers admitted it had lost the heater and had not tested it prior to its disappearance, Boyd brought suit against Travelers’ listing claims for both willful and wanton spoliation of evidence and negligent spoliation of evidence.31 Travelers moved to dismiss the claims for spoliation of evidence, arguing that the causes of action did not exist in Illinois.32 The trial court dismissed the actions, finding that Boyd had failed to state a claim for negligent spoliation of evidence as an injury could not be alleged until the plaintiff lost the underlying products liability suit with heater’s manufacturer. 33

On appeal, the Illinois Supreme Court first clarified that although Illinois courts had not recognized a separate cause of action for spoliation of evidence, an action for negligent spoliation could be brought under existing negligence law.34 The court argued that traditional remedies were adequate to redress destruction of evidence and a new tort need not be created.35 In order to state a cause of action for negligent spoliation, the plaintiff must plead that the defendant owed a duty to the plaintiff, the defendant breached that duty, an injury was proximately caused by the breach, and the plaintiff sustained damages.36

Second, the court stated that generally, there is no duty to preserve evidence.37 However, the duty may arise through an agreement, contract, statute, or other special circumstance.38 A defendant may also voluntarily assume a duty through affirmative conduct.39 In any of these circumstances a defendant owes a duty of due care to preserve evidence if "a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action."40 In this case, Travelers was aware that the heater was evidence relevant to future litigation and it assumed a duty when Travelers’ agent took possession of the heater.41

Third, the court held that in order to satisfy the element of causation, the plaintiff need only allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit.42 The plaintiff must demonstrate that but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable opportunity of succeeding in the underlying suit, not that the plaintiff would have prevailed.43

Finally, the court encouraged trying the negligent spoliation claim and underlying suit concurrently, reasoning that the trier of fact hearing the underlying claim would best be able to determine the issues of causation and damages.44

Under the limited circumstances set forth in Boyd, a third party could be liable to either the plaintiff or the defendant in the underlying suit for failure to preserve material evidence. More recently, the Illinois Supreme Court had an opportunity in Dardeen v. Kuehling to expand the limited parameters giving rise to the duty to preserve evidence to encompass third parties with a direct stake in the outcome of the underlying suit, such as insurers.45

In Dardeen, the plaintiff, James Dardeen, stumbled and fell in a hole the size of a "dinner plate" in the brick sidewalk of the defendant’s house, fracturing his right elbow.46 Later that same day, Dardeen’s daughter notified the defendant, Alice Kuehling, of the accident and requested the name of Kuehling’s insurer.47 Kuehling then spoke to her State Farm insurance agent, Ronald Couch.48 Kuehling described the accident and the condition of the sidewalk to Couch and asked whether "it would it be all right to remove the bricks before somebody else gets hurt on it [sic]."49 Couch assured Kuehling that she could repair the sidewalk.50 Within a few days, Kuehling removed the bricks from the area without first taking pictures of the defective sidewalk.51 Dardeen subsequently filed a premise liability suit against Kuehling and amended his complaint to add claims for negligent spoliation of evidence against Kuehling and State Farm.52

Dardeen alleged that State Farm breached its duty to preserve material evidence when it authorized removal of the bricks without taking photographs of the area.53 State Farm filed a motion for summary judgment that was granted by the trial court.54 Dardeen appealed the judgment and the appellate court reversed.55 After reviewing Boyd and Shimanovsky, the appellate court held that State Farm had a duty to preserve the evidence since Kuehling’s insurance policy created a contractual relationship and State Farm would be aware that the sidewalk was material evidence to potential litigation arising from Dardeen’s fall.56 The appellate court rejected State Farm’s argument that they owed no duty to preserve evidence it did not possess or control, finding that State Farm had the opportunity to exercise control.57 However, on appeal, the Illinois Supreme Court did not agree that State Farm owed a duty to Dardeen and reversed the appellate court’s decision.58

The Illinois Supreme Court’s opinion in Dardeen clarified that for a contractual duty to exist, the contract or agreement must be between the parties to the spoliation claim;, in this case, Dardeen and State Farm.59 Dardeen also argued that because the insurance contract gave State Farm the authority to guide or manage the actions of its insured, it created a special circumstance that satisfied the relationship requirement.60 Additionally, in a brief filed as amicus curiae for the defendant, the Illinois Trial Lawyers Association argued the court should reconcile Shimanovsky with Boyd, and hold that only strangers to the controversy owe no duty to preserve evidence, while parties with a "direct stake in the outcome of the litigation owe a duty to preserve and/or document the existence and condition of relevant and material evidence."61 ITLA further argued that insurers such as State Farm control the litigation of its insured and when Kuehling called her agent for advice, a duty was created.62 However, the court rejected these arguments finding no special circumstance existed since the plaintiff never contacted State Farm to request or preserve evidence, and because State Farm never possessed or controlled the evidence.63 Further, without deciding whether possession is required in every negligent spoliation case, the court found that no Illinois court had previously held that the mere opportunity to exercise control was sufficient to meet the relationship requirement.64

Finally, the court distinguished Shimanovsky from Boyd and Dardeen by explaining that unlike its role in Boyd and Dardeen, the court was not asked to consider in Shimanovsky whether the plaintiff had successfully alleged a negligent spoliation claim, but rather, the court’s review was limited to deciding whether, in light of the plaintiff’s spoliation, dismissal of the plaintiff’s suit was an appropriate discovery sanction.65

Because the court refused to expand the duty of third parties to preserve material evidence beyond the limited circumstances in Boyd, third parties continue to face few consequences for the destruction or alteration of material evidence.

V. Practical Implications & Conclusion

Subsequent to Boyd, the attorney representing the Boyds had the following advice for practitioners:

First, when presented with an injury-causing accident, do not move or destroy the evidence and send a letter explicitly advising your clients not to do so…

Consider also moving for a protective order if there’s any chance that the evidence might be altered before it can be adequately tested, photographed, and otherwise preserved for trial.67

Recently, an Illinois Appellate Court case from the Second District, Anderson v. Mack Trucks, Inc., underscored the importance of obtaining a protective order.68 In Anderson, the court held that absent some other relationship, a mere request that a party preserve evidence was not enough to constitute a special circumstance imposing a duty.69

Finally, Boyd and Dardeen suggest that third parties should be careful to consider the implications of their actions prior to "misplacing" or "remedying" evidence in potential or current claims. Although they may be unaffected by criminal penalties, discovery sanctions, evidentiary presumptions, and adverse inferences, a claim for negligent spoliation could subject third parties to extensive civil liability.

2 Black’s Law Dictionary (8th ed. 2004).

3 Charles R. Nesson, Incentives to Spoliate Evidence in Civil Litigation: The Need for Vigorous Judicial Action, 13 Cardozo L. Rev. 793, 793 (1991).

4 Kristin Adamski, A Funny Thing Happened On The Way To The Courtroom: Spoliation of Evidence in Illinois, 32 J. Marshall L. Rev. 325, 336-37 (1999).

5 Id., see also Margaret O’Mara Frossard & Neal S. Gainsberg, Spoliation of Evidence in Illinois: The Law After Boyd v. Traveler’s Insurance Co., 28 Loy. U. Chi. L.J. 685 (1997); Laurie Kindel & Kai Richter, Spoliation of Evidence: Will the New Millennium See a Further Expansion of Sanctions For the Improper Destruction of Evidence?, 27 Wm. Mitchell L. Rev. 687 (2000).

6 Boyd v. Travelers Insurance Co., 166 Ill.2d 188 (Ill. 1995).

7 720 Ill.Comp.Stat. 5/31-4 (2005).

8 Id.

9 Adamski, supra note 3, at 346.

10 Id.

11 ILS. Ct. Rule 219(c) (West 2005).

12 Id.

13 Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 124 (Ill. 1998).

14 IL S. Ct. Rule 219(c) (West 2005). Pursuant to the rule, an offending party could risk a default judgment or dismissal of his of her claim.

15 Shimanovsky, 181 Ill.2d at 121-22.

16 ILCS S. Ct. Rule 219(c) (West 2005).

17 Dardeen v. Kuehling, 213 Ill.2d 329, 340 (Ill. 2004).

18 Ill. Pattern Jury Instructions 5.01 (Civil 3d).

19 Id; see also Nasrallah v. Davilla, 326 Ill.App.3d 1036, 1042 (Ill. App. Ct. 2001).

20 Whittaker v. Stables, 339 Ill.App.3d 943, 947 (Ill. App. Ct. 2003).

21 Haynes v. Coca Cola Bottling Co., 39 Ill.App.3d 39, 41 (Ill. App. Ct. 1976).

22 Nasrallah, 326 Ill.App.3d at 1042.

23 Whitaker, 339 Ill.App.3d at 947.

24 Boyd v. Travelers Insurance Co., 166 Ill.2d 188 (Ill. 1995) (holding that a third party may owe a duty to preserve evidence if there exists a special relationship between the plaintiff and the third party and the third party should have reasonably foreseen that the evidence was material to a potential civil action).

25 Id.

26 Id. at 194.

27 Id. at 191.

28 Id.

29 Id.

30 Boyd, 166 Ill.2d at 191.

31 Id. at 192.

32 Id.

33 Id.

34 Id. at 194.

35 Id.

36 Boyd, 166 Ill.2d at 194-95.

37 Id. at 195.

38 Id.

39 Id.

40 Id.

41 Id.

42 Boyd, 166 Ill.2d at 196.

43 Id. at 196 n.2.

44 Id. at 198.

45 Dardeen v. Kuehling, 213 Ill.2d 329 (Ill. 2004).

46 Id. at 330.

47 Id.

48 Id.

49 Id.

50 Id.

51 Dardeen, 213 Ill.2d at 330.

52 Id. at 332.

53 Id.

54 Id.

55 Id.

56 Id. at 333.

57 Dardeen, 213 Ill.2d at 333.

58 Id. at 340.

59 Id. at 337.

60 Id.

61 Id. at 338.

62 Id.

63 Dardeen, 213 Ill.2d at 340.

64 Id.

65 Id.

66 Id.

67 Helen W. Gunnarsson, Law Pulse, 90 Ill. B.J. 338, 342 (July 2002).

68 Andersen v. Mack Trucks, Inc., 341 Ill.App.3d 212 (Ill. App. Ct. 2003).

69 Id. at 217.

70 Dardeen, 213 Ill.App.3d 329. Informing third parties of potential claims and requesting the preservation of specific evidence might create the special relationship between the third party and plaintiff necessary to give rise to the duty to preserve evidence.

Lisa Psaute is a second year law student at NIUCOL and is a staff member on the NIU Law Review. She is currently a Law Clerk at The Collins Law Firm in Naperville, Illinois.

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