Idaho Joins Minority of States Recognizing Third-Party Independent Tort of Spoliation

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Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019).

Idaho Flag“Spoliation” of evidence occurs when someone with an obligation to preserve evidence with regard to a legal claim neglects to do so or intentionally fails to do so. Such a failure to preserve evidence can take place by destruction of the evidence, damage to the evidence, or loss the evidence. First-party spoliation claims are those claims for destruction or alteration of evidence brought against parties to underlying litigation. Conversely, third-party spoliation claims are those destruction or alteration of evidence claims against non-parties to underlying litigation. Moreover, most of these states generally hold that the third-party spoliator must have had a duty to preserve the evidence before liability can attach. The majority of states that have examined this issue have preferred to remedy spoliation of evidence and the resulting damage to a party’s case or defense, through sanctions or by giving adverse inference instructions to juries.

When spoliation of evidence occurs, the party responsible may be held accountable in court through a variety of different sanctions. Those sanctions vary greatly from state to state. In 1984, California was the first state to recognize the tort of spoliation. Smith v. Superior Ct., 151 Cal. App.3d 491, 198, Cal. Rptr. 829, 831 (Cal. 1984). However, the majority of jurisdictions that have subsequently examined the issue have declined to create or recognize such a tort. Only Alabama, Alaska, Florida, Indiana, Kansas, Louisiana, Montana, New Mexico, Ohio, and West Virginia have explicitly recognized some form of an independent tort action for spoliation.

For many years, Idaho courts had discussed this tort but never formally recognized it. In Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 177-178, 923 P.2d 416, 422-423 (Idaho 1996), the court found that assuming Idaho law would recognize the tort of spoliation, it would require the willful destruction or concealment of evidence. In this particular case, the court found that the plaintiffs had not demonstrated that the defendants destroyed any evidence which would justify holding them liable for this tort. On October 18, 2019, however, the Idaho Supreme Court finally adopted Third-Party Spoliation as an independent tort.

In Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019), Raymond was killed in a car accident when a sheriff deputy passed him in the left lane as he was making a lawful left turn. Criminal charges were brought for vehicular manslaughter and Raymond’s family sued the State Police in state court. The state covered up and destroyed evidence that the officer was under the influence at the time and attempted to conceal evidence and threaten witnesses in an effort to prevent the Deputy from facing criminal and civil liability in relation to the accident. Raymond’s estate sued the county, the police officer, and the state police department, alleging claims including tortious interference with prospective civil action and, in alternative, tortious interference with prospective economic advantage. After the trial court dismissed the Estate’s claims against the Idaho State Police, the Estate, on appeal, asked the Supreme Court to recognize the third-party spoliation tort, which it did.

The Supreme Court adopted the tort of Intentional Interference with A Prospective Civil Action by Spoliation of Evidence by a Third Party (Third Party Spoliation). This now allows an action for spoliation damages against third parties who are not part of the underlying civil lawsuit. In Raymond v. Idaho State Police, the Idaho Supreme Court for the first time recognized a tort of intentional interference with a prospective civil action by spoliation of evidence. The court justified its decision by stating that there were two basic policy justifications supporting its formal adoption of this tort: (1) to provide a remedy for spoliation victims who would otherwise be unable to recover in their underlying lawsuits; and (2) to deter future spoliation of evidence.

The Supreme Court went even further and established the elements a plaintiff must prove to establish this new cause of action:

  1. a pending or probable lawsuit involving the plaintiff;
  2. the defendant’s knowledge of the potential or probable lawsuit;
  3. the wrongful destruction, mutilation, alteration, or concealment of evidence by the defendant designed to disrupt or defeat the potential lawsuit;
  4. disruption of the potential lawsuit;
  5. a causal relationship between the act of spoliation and the disruption to the lawsuit; and
  6. damages proximately caused by defendant’s acts.

As for damages, the court said damages are to be proven with reasonable certainty. This requires neither absolute assurance nor mathematical exactitude; rather, the evidence need only be sufficient to remove the existence of damages from the realm of speculation. The court did recognize that the requirement of reasonable certainty in proving damages potentially conflicts with the inherently speculative nature of damages that may arise in a claim for intentional interference with a prospective civil action by spoliation of evidence. Thus, as often happens in civil damage claims, this will be an evidentiary issue that may need to be addressed by the trial court prior to or during trial, or ultimately resolved at trial by the jury.

A chart detailing the spoliation of evidence laws in all 50 states, see HERE. For more information on this area of law, please contact Gary Wickert at [email protected].

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.