As a consequence of the strange contours of California’s spoliation doctrine, there may be circumstances in which a party is better off stealing and destroying evidence than allowing that evidence to be used at trial. The point of this article is not to counsel parties to destroy their evidence but rather to highlight the unfortunate incentive structure created by recent California decisions.
The tort of spoliation of evidence was first recognized by California courts in Smith v. Superior Court,151 Cal. App. 3d 491 (1984). “Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another’s use in pending or future litigation.” Williams v.Russ, 167 Cal. App. 4th 1215, 1223 (2008). The action endured for over a decade until in Cedars-SinaiMedical Center v. Superior Court, 18 Cal. 4th 1 (1998), the California Supreme Court ruled that no cause of action would lie for the intentional spoliation of evidence by a party to the litigation. The prohibition was later expanded to negligent spoliation, see Strong v. State, 201 Cal. App. 4th 1439, 1459(2011), and to cover third parties, see Temple Community Hospital v. Superior Court, 20 Cal. 4th 464, 477 (1999). The policy rationale for killing the spoliation tort makes a lot of sense: “Creating a tort remedy for spoliation would spawn ‘endless litigation’ in which a dispute could never be finally resolved, because an unsuccessful litigant could always file a new action claiming that evidence which might have affected the outcome of the original action had been destroyed by another litigant or a third party.” Forbes v. Cty. of San Bernardino, 101 Cal. App. 4th 48, 56(2002).
But recently the Court of Appeal may have gone too far, holding in an unpublished opinion that even when a litigant steals another party’s documents, the ban against pleading spoliation still protects the burglar. In Kwok v. Kwong, Case No. A143795 (Cal. Ct. App. Jul. 7, 2016) (unpublished), plaintiff alleged that defendants broke into plaintiff’s business, collected documents and carted them off in boxes. The alleged daytime-burglary was even caught by security cameras. But the Court of Appeal held, in affirming a demurrer, that it does not really matter how defendants came to possess the documents—theft or not—the act of “destroy[ing] or alter[ing] evidence . . .meets the definition of spoliation.” Id. And because there is no spoliation tort in California, there is no cognizable claim. Id. at 10. Matter dismissed.
The Kwok court sympathetically noted that there are a “number of nontort remedies . . . to deter the destruction or alteration of evidence” including discovery sanctions, state bar discipline, and criminal penalties. Id. at 8. But these remedies are often weak or effectively non-existent. Consider criminal penalties. Crimes are charged—or often not charged—at the discretion of the prosecutor. Parties have no real power to force the state to charge a crime. And generally speaking, prosecutors have neither the interest nor the bandwidth to take on document theft matters. In the Kwok case, for example, upon filing a police report, the police declined to investigate or charge the crime, because it was, in their opinion, a civil matter. And while discovery sanctions maybe better than nothing, the Discovery Act was designed to redress incomplete discovery responses, not prosecute crimes nor provide remedies for full blown civil-wrongs; for that reason discovery sanctions are often incommensurate with the value of the lost or stolen evidence.
Given the relative weakness of spoliation’s non-tort remedies, and given the comparative value of documentary evidence, we can easily imagine high-value cases where a party would be better off stealing and/or destroying documents—even if the spoliation is detected—than going to trial with those documents in evidence.
The Court or the legislature might do well to remedy this inequity by carving out clear and certain exceptions to the spoliation ban for intentional torts and crimes such as theft, burglary, arson, and the like. Until then, the rule of law will suffer at the hands of less scrupulous litigants.
The firm is pleased to report that in a hard fought matter spanning eight years, after a trial, and after four years on appeal, the California Court of Appeal ruled in favor of Tong Robbins’ clients, holding, in plain language, “We agree with plaintiffs.”
Much litigation is consumed in discovery, the formal process of asking questions and obtaining answers. Discovery responses are required to be code compliant, i.e. in accord with the provisions of the California Discovery Act. Failure to make code compliant responses is an easy way for a respondent to lose a discovery motion; and demanding code compliance is an easy way for the propounding party to win.
Sometimes after a plaintiff has lost a particularly acrimonious action the defendant will sue back, arguing that the original lawsuit was frivolous, brought in bad faith, malicious, or otherwise improper. In this second action, the former plaintiff (now defendant) will typically defend by arguing that she did nothing wrong; she was simply following her attorney’s advice. This is not the Nuremberg defense. It is known as the “advice of counsel” affirmative defense.
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