What Is Spoliation In California Law?

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Spoliation means the suppression or destruction of evidence. It can also mean the alteration of evidence.

What Is Evidence Under California Law?

There are 3 types of evidence under California law:

  1. Testimonial (people testifying)
  2. Documentary (any type of “writings,” broadly defined in Evidence Code § 250)
  3. Real (actual physical evidence, like the murder weapon)

See Evidence Code § 140

Spoliation of evidence rarely involves either testimonial evidence or real evidence, although it could. Spoliation of evidence almost always refers to documentary evidence. For example, removing documents from a personnel file is spoliation (Sprague v Equifax, Inc. (1985) 166 CA3d 1012, 1051.

Where Could I Encounter Spoliation?

Spoliation can occur in these scenarios:

  • Someone falls in a store because of water on the floor. A surveillance camera captures the fall. A manager is aware of the fall and of the video of the fall, but he deletes the video.
  • Security beats someone up at a bar and the attack is captured on camera, but management doesn’t save the camera footage.
  • An incident happens at a school and there’s an investigation, but administration destroys the notes of the investigation.

Spoliation can occur anytime someone destroys, suppresses, or alters evidence.

What Can I Do About Spoliation

Not a lot. You can’t sue for it. See Cedars-Sinai Medical Center v Superior Court (1998) 18 Cal4th 1 (even if defendant hospital destroyed medical records, there is no tort of spoliation).

You can, however, ask the Court to issue sanctions. Here’s another post on sanctions.

You can also get a jury instruction that the party responsible for spoliation “intentionally concealed or destroyed evidence.” See CACI 204. The jury can then be instructed that the party responsible for spoliation likely did so because “the evidence would have been unfavorable.” See too Evidence Code § 413.

How To Get A Jury Instruction For Spoliation

You have to put the defendant on notice of the claim, and ask the defendant to preserve the evidence. Best practice is to send a certified letter or have the letter personally served on the defendant.

Evan Walker

Evan W. Walker is a La Jolla attorney who has practiced law since 2008. He has practiced law throughout California, Connecticut, and Louisiana.

Evan worked for and defended insurance companies during the first 7 years of his practice. Since 2015, he has represented people with personal injury and property damage claims and insurance disputes.

Evan’s practice is devoted to serious personal injury claims and catastrophic property damage claims. Areas of focus include security claims against bars and other businesses, government tort claims, fire and flood claims, and inverse condemnation. On behalf of clients, Evan has fought insurance firms, international companies, cities, bars, and casinos.

Evan regularly shares his expertise with other attorneys by teaching courses on insurance and inverse condemnation. He has taught several continuing legal education courses to Attorney Credits, a nationwide CLE company, and ProLawCLE, another nationwide CLE company. He also contributes to various podcasts and publications.

Associations:

  • Member, State Bar of California
  • Member, San Diego Bar Association
  • Member, Consumer Attorneys of California
  • Member, Consumer Attorneys of San Diego
  • Member, La Jolla Bar Association
  • Member, La Jolla Village Merchants Association
  • Member, San Diego Chamber of Commerce