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