i]n practice, an adverse inference instruction often ends litigation--it is too difficult a hurdle for the spoliator
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
2d at 781 (internal citations omitted) (holding that although no adverse presumption could lie where a spoliator
was not duty-bound to preserve evidence, that nevertheless "an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence"); but see Pa.
culpability of the spoliator
and inferring relevance and prejudice
2009) ("The argument of an accused spoliator
that it did
Courts precluding the issuance of the negligent spoliation inference do so with the belief that the adverse inference prejudices the spoliator
by branding him as a bad actor.
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.
Courts have found, however, that a duty to preserve evidence may arise under any of the following circumstances: the spoliator
voluntarily undertakes to preserve the evidence and a person reasonably relies on it to his detriment; the spoliator
entered into an agreement to preserve the evidence; there is a specific request to the spoliator
to preserve the evidence; or there is a duty to do so based upon a contract, statute, regulation, or some other special circumstance or relationship.
21) Must the nonspoliating party establish the culpability of the spoliator
before a spoliation inference is issued?
Since Vick, the Court has consistently confirmed that an adverse inference instruction must be predicated on a finding that the spoliator
intentionally destroyed relevant evidence in "bad faith," i.
There is often a difficult road still ahead in overcoming obstacles and marshalling evidence to support findings that the ESI that was destroyed is relevant and harmful to the spoliator
and that the spoliator
acted with the requisite level of culpability.
9) These courts argue that non-willful spoliation therefore cannot sustain an inference that a negligent spoliator
destroyed evidence because it would have hurt the spoliator
The duty to preserve evidence flouted by the spoliator
can arise from a court order, a discovery request, a statute or administrative regulation, a contract, and perhaps common law.
Plaintiffs in a third-party spoliation action must show a duty to a foreseeable plaintiff, a breach of that duty, proximate cause and damage, as in all negligence cases, but they must also show (1) that the spoliator
had actual knowledge of pending or potential litigation; (2) that the spoliator
had a duty through a voluntary undertaking, an agreement or a specific request; and (3) that the missing evidence was vital to the plaintiff's potential action.