Thus, a check-the-box approach may be followed in the event that a party commits one of the enumerated acts of gross negligence within the formulaic roadmap of Pension Committee, the innocent party is strongly incentivized to bring a spoliation motion because the burden rests entirely upon the alleged spoliator
to disprove relevance and prejudice, rather than upon the party bringing the motion to prove these elements.
71) This ambiguous approach has imparted more discretion to the courts to impose a sanction that is commensurate with the level of culpability of the spoliator
and the importance of the evidence to the non-spoliator
The Fourth District held that, "[d]espite the decision in Bondu, having now squarely confronted the issue, we side with those courts that have held that an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator
and the defendant in the underlying litigation are one and the same.
Some sanctions are designed to punish the spoliator
Unfair prejudice flows, for example, from a spoliator
Generally, before an adverse inference is given, the aggrieved party must show that the spoliator
acted with bad faith or some other type of willful intent or willful behavior.
The court's disposal of the defenses asserted reveal the question a court will raise in response to each defense, putting the lawyer-reader on notice of the rationale they must overcome if ever they represent an accused spoliator
Although the spoliated evidence may at first frustrate the party who desired it, the spoliation can actually benefit that party through the imposition of sanctions, evidentiary presumptions, or even a separate cause of action for spoliation of evidence against the spoliator
However, the court was unpersuaded that a showing of relevance had been made: "This corroboration requirement is even more necessary where the destruction was merely negligent, since in those cases it cannot be inferred from the conduct of the spoliator
that the evidence would even have been harmful to him.