IF IT’S SPOILED, YOU’LL GET FOILED – CURRENT TRENDS

IN SPOLIATION

Spoliation

Omnia prae sumuntur spoliatorem

(All things are presumed against the wrongdoer)

Factors

Degree of fault and personal responsibility of spoliator

Degree of prejudice to innocent party

Availability of effective but lesser sanctions

Purpose of Sanctions

Punishment Deterrence Level the playing

field

Sanctions

Adverse inference instruction

Exclusion of testimony Preclusion of experts Shifting the burden of

proof Dismissal or entry of

judgment

Smith v. Robertshaw Controls (May 27, 2005)

Propane-fired water heater exploded Plaintiff in a coma for 3 months Heater preserved for 1 year, then discarded by 3rd

party

HELD:(1) Summary judgment

appropriate(2) Late notice = prejudice

Mount Olivet Tabernacle Church v. Wiegand

Notice to heater manufacturer 22 months after fire

Fire scene demolished No ability to inspect for

alternative causes

HELD:

(1) No bad faith

(2) Low prejudice to defendant• Product preserved• Design defect case• Public sector agreed with plaintiff

(3) No Sanction OK

Eichman v. McKeon

Use of spoliation as sword, not a shield

Township condemned building

Minimal fault The duty to preserve

evidence is not boundless