Duhaime's Law Dictionary

Spoliation Definition:

The intentional destruction of relevant evidence when litigation is existing or pending.

Related Terms: Omnia praesumuntur contra spoliatorem

A problem in law since times immemorial: the intentional destruction of potential evidence by one of the parties of a claim at law; the evidence being destroyed generally being disfavorable to the person destroying - known as the  spoliator.

In Silvestri, the plaintiff wanted to sue the defendant GM but then sold the car before the litigation started. General Motors asked the Court to dismiss the lawsuit alleging the plaintiff's spoliation of the evidence (the car being sold).

The Court agreed, Justice Niemeyer of the United States Court of Appeal, Fourth Circuit adopting these words:

"Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.

"The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct....

"The applicable sanction should be molded to serve the prophylactic, punitive and remedial rationales underlying the spoliation doctrine."

In Beck, Chief Judge Boggs of the US Court of Appeals, 6th Circuit wrote:

"Spoliation is the intentional destruction of evidence that is presumed to be unfavourable to the party responsible for the destruction."

In McDougall v. Black & Decker Canada, Justice Madam Justice Conrad of the Court of Appeal of Alberta, wrote:

"The problem of lost or destroyed evidence is not new to litigation. In Rome, where businessmen were obliged to keep a written record of their affairs for a particular period of time, the maxim omnia praesumuntur contra spoliatorem (all things are presumed against the wrongdoer) was applied with much harshness and a claimant could be denied his claim, or found to have committed fraud, if he did not produce the documents when required. This maxim has been applied by the courts ever since, even in common law jurisdictions, although its strict application has moderated considerably over time. Thus, in England it now takes the form of a presumption that if evidence relevant to litigation has been intentionally destroyed a strong presumption arises that the evidence would not assist the party responsible for its loss or destruction (spoliator).

"Some American courts have been more aggressive. American jurisprudence is replete with examples of courts granting a variety of remedies where evidence has been lost or destroyed – such as striking the claim, or disallowing expert reports (either before or during trial), in order to ensure a level playing field. The courts in some states have gone so far as to find that spoliation is an actionable tort...."

I would summarize the Canadian law of spoliation in the following way. Spoliation currently refers to the intentional destruction of relevant evidence when litigation is existing or pending. The principal remedy for spoliation is the imposition of a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case.

Outside this general framework other remedies may be available – even where evidence has been unintentionally destroyed. Remedial authority for these remedies is found in the court’s rules of procedure and its inherent ability to prevent abuse of process, and remedies may include such relief as the exclusion of expert reports and the denial of costs.

The courts have not yet found that the intentional destruction of evidence gives rise to an intentional tort, nor that there is a duty to preserve evidence for purposes of the law of negligence, although these issues, in most jurisdictions, remain open.

Generally, the issues of whether spoliation has occurred, and what remedy should be given if it has, are matters best left for trial where the trial judge can consider all of the facts and fashion the most appropriate response.

Pre-trial relief may be available in the exceptional case where a party is particularly disadvantaged by the destruction of evidence. But generally this is accomplished through the applicable rules of court, or the court’s general discretion with respect to costs and the control of abuse of process.


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