No Negligent Spoliation in Louisiana
The Louisiana Supreme Court recently reigned in the remedies available against a party that inadvertently loses or destroys evidence. In Reynolds v. Bordelon, 2014–C–2362, issued on June 30, 2015, the Court held that Louisiana does not recognize the tort of negligent spoliation of evidence.
In Reynolds, the plaintiff alleged that the defendant auto insurer and its vehicle custodian failed to preserve the automobile involved in an accident. The plaintiff complained that, before it allowed the vehicle to be disposed, the insurer had notice that the vehicle should have been saved to be used as evidence in a lawsuit. The plaintiff sought compensatory damages for the damages he could have proved but for the negligent loss of the vehicle. The plaintiff alleged various causes of action supporting the alleged damages, including impairment of a civil claim, loss of a right or opportunity, detrimental reliance, general negligence and breach of contract. Despite these varied claims, the Supreme Court explained that at “its heart, the petition prays for relief for third parties’ acts of negligently destroying evidence.” The Court framed the task before it as “answering the sole issue of whether Louisiana recognizes a claim for negligent spoliation.”
The Court answered the question in the negative mostly on public policy grounds. The Court explained: “We find the act of negligently spoliating evidence is so unintentional an act that any recognition of the tort by the courts would not act to deter future conduct, but would, rather, act to penalize a party who was not aware of its potential wrongdoing in the first place. This is particularly true in the case of negligent spoliation by a third party, who is not vested in the ultimate outcome of the underlying case, and thus, has no motive to destroy or make unavailable evidence that could tend to prove or disprove that unrelated claim.” The Court also expressed concern about the speculative nature of negligent spoliation claims, noting that “the parties and the trier of fact would be called upon to estimate the impact of the missing evidence and guess at its ability to prove or disprove the underlying claim, resulting in liability based far too much on speculation.”
Recognizing the tort of negligent spoliation could also increase the costs of litigation, the Court added. “It is easy to imagine the trickle-down effect that a preservation policy would have on insureds themselves; the longer an insurer or auction company is required to store a vehicle, the higher the costs, and the more likely insurance premiums would be increased to absorb those costs.” Addressing a final concern, the Court warned that adopting a negligent spoliation tort could create confusion and waste of judicial resources. “Allowing a derivative tort invites litigation and encourages parties to bring a new suit where the underlying suit was not successful. Again, this derivative litigation could open the floodgates for endless lawsuits where the loss is speculative at best. Additionally, it could create confusion for fact-finders, particularly juries, inasmuch as it allows a trial within a trial. For instance, triers of fact could be presented with the facts of the underlying case and also presented with the facts surrounding the alleged destruction of evidence, causing inconsistency and the potential for misunderstanding.”
Instead of adopting the tort of negligent spoliation, the Court reminded litigants that several other remedies are available to address the negligent loss of evidence, including discovery sanctions, breach of contract actions, and potentially even criminal sanctions. Taking into account all the considerations outlined above, the Court clearly rejected the tort of negligent spoliation. “Our review of the policy considerations lead us to conclude that Louisiana law does not recognize a duty to preserve evidence in the context of negligent spoliation. In the absence of a duty owed, we find there is no fault under La.Civ.Code art. 2315 or under any other delictual theory in Louisiana. Furthermore, the presence of alternate remedies supports our holding that there is no tort of negligent spoliation of evidence. Accordingly, we agree with the lower courts that there is no cause of action for this tort.”
This decision should generally favor insurers and other defendants who seemingly faced the majority of negligent spoliation claims. In this decision, the Louisiana Supreme Court appropriately recognized the dangers of litigation over such speculative litigation, and curtailed the ever-increasing claims of spoliation of evidence. However, it should be noted that the tort of intentional spoliation remains viable, at least until any future Supreme Court consideration. Zurich Am. Ins. Co. v. Queen’s Mach. Co., Ltd, 08-546 (La. App. 5 Cir. 1/27/09); 8 So. 3d 91, 97 (La. Ct. App. 2009).