Lead Opinion
Opinion
In Cedars-Sinai Medical Center v. Superior Court (1998)
As we shall explain, many of the considerations that led us in Cedars-Sinai to decline to recognize a tort cause of action for spoliation apply with equal weight when the spoliation is committed by a third party. The doubtful benefit of the proposed tort remedy is outweighed by the prospect of a spiral of litigation giving rise to verdicts based upon speculation. In addition, it would be anomalous for a nonparty to be liable in damages, including punitive damages, for conduct that would not give rise to tort liability if committed by a party. We conclude that no tort cause of action will lie for intentional third party spoliation of evidence.
I
The present lawsuit arose out of surgery performed on January 16, 1995, on plaintiff Sandra Ramos at Temple Community Hospital (Hospitаl) in Los Angeles. Anesthesiologist K. Jackson placed Ramos under general anesthesia, and surgeon Jamshid Nazarian applied an electrocautery tool to Ramos’s right eyebrow. In her complaint in the underlying action, plaintiff alleges that the electrocautery tool caused oxygen used in the anesthesia to ignite, causing a fire that severely burned her face. She also alleges that Dr. Nazarian’s records indicate that the electrocautery tool “failed” when a flame emerged from it, and that the flame ignited the oxygen.
Ramos alleges that her counsel made various efforts, beginning on January 23, 1995, to ensure the preservation of evidence. Specifically, she alleges that counsel requested that Hospital and the physicians retain the cautery instrument and “any other evidence that is relevant to causing this severe facial injury,” and further alleges that counsel requested permission to inspect that evidence and certain documentary evidence. Defendants, it is alleged, refused to permit inspection of the equipment used in the surgery.
In May 1995, Ramos filed a complaint in the Los Angeles County Superior Court, alleging tort causes of action against Hospital, the two physicians, and various manufacturers and distributors of medical equipment, as well as entities responsible for inspection and maintenance of medical equipment. Plaintiff alleged four causes of action against Hospital, which included professional malpractice, intentional and negligent spoliation of evidence, and general negligence. She also named her treating physicians in the first three of these causes of action. The remaining causes of action alleged various product liability, breach of warranty, and negligence claims against a number of other defendants. These claims involved the design and maintenance of medical equipment used in plaintiff’s care. In particular, plaintiff alleged a product liability cause of action against Valleylab, Inc., the manufacturer of
Plaintiff alleges in the cause of action for intentional spoliation that Hospital knew of the existence of evidence such as the oxygen tank and mask, and the electrocautery tool used in thе surgery, as well as related written records, knew that these items might constitute relevant evidence in potential litigation, knew of plaintiff’s potential products liability claims, and knew that Hospital was engaging in acts likely to cause the loss or concealment of such evidence. Plaintiff also alleges that Hospital caused the loss or concealment of this potential evidence by failing to provide plaintiff with timely access to this evidence, despite numerous requests by counsel, and that Hospital disposed of the oxygen tank that was the source of the explosion. Plaintiff alleged that this conduct “caused the Plaintiff to sustain damage, namely that Plaintiff’s opportunity to discover and then prove her entitlement to compensation for injuries sustained as a result of the Accident was substantially interfered with. Because of this lost opportunity, Plaintiff has been deprived of the opportunity to establish her right in a judicial forum to receive reimbursement from the Defendants for such injuries.” Plaintiff sought compensatory and punitive damages in connection with this cause of action.
Defendant Hospital moved to strike portions of the complaint as irrelevant, particularly the references to plaintiff’s alleged attempts to obtain informal discovery bеfore the filing of the complaint. Defendant Hospital also moved to strike plaintiff’s prayer for punitive damages in connection with the cause of action for intentional spoliation, because of plaintiff’s failure to comply with the requirements of Code of Civil Procedure section 425.13, subdivision (a) (hereafter section 425.13(a)), which provides that in medical malpractice actions, no claim for punitive damages shall be included in a complaint unless the court has determined there is a substantial probability the plaintiff will prevail on the claim.
Plaintiff opposed the motion, contending that her second cause of action for intentional spoliation of evidence was not subject to section 425.13(a), that there was no basis for striking other allegations contained in the complaint, and that her allegations were sufficient to state a claim for punitive damages in connection with the alleged intentional spoliation.
On September 5, 1995, the trial court denied Hospital’s motion to strike, concluding the alleged spoliation of evidence did not occur while Hospital was rendering professional medical services to plaintiff, thus rendering section 425.13(a) inapplicable.
On September 21, 1995, Hospital filed a petition for writ of mandate in the Court of Appeal, contending that the trial court had erred in determining that section 425.13(a) did not apply to plaintiff’s claim for punitive damages in connection with the cause of action alleging intentional spoliation of evidence. Hospital sought a writ of mandate to compel respondent court to vacate its order denying Hospital’s motion to strike and to enter a new order granting the motion. The Court of Appeal summarily denied the petition. Hospital petitioned this court for review of the order denying writ relief, and we granted review, transferring the matter to the Court of Appeal with directions to vacate its order and issue an alternative writ to be heard before that court.
Having issued the alternative writ, the Court of Appeal denied the petition for writ of mandate, concluding that section 425.13(a) does not apply to the intentional spoliation of evidence alleged in the complaint. Thereafter, we granted Hospital’s petition for review to decide whether a tort cause of action should lie for intentional spoliation of evidence, and—in the event such a tort action
Wе observe that plaintiff’s spoliation claim is a hybrid. She alleges that Hospital caused the loss of evidence relevant to all her claims—those against Hospital as well as those, for example, against Valleylab, Inc. To the extent plaintiff’s spoliation claim is based upon the allegation that Hospital intentionally destroyed or suppressed evidence relevant to plaintiff’s claims against Hospital, her claim is barred by our recent decision in Cedars-Sinai, and despite plaintiff’s disagreement with the holding in that recent case, we conclude there is no reason to reconsider it at this time. Assuming the remainder of the claim properly may be characterized as a third party spoliation claim because it involves spoliation of evidence relevant to plaintiff’s causes of action against the other defendants, we consider whether third party spoliation may give rise to a cause of action in tort.
II
In order to determine whether a tort cause of action for intentional spoliation of evidence by a third party should be recognized, we consider first our recent decision in Cedars-Sinai, supra,
In Cedars-Sinai, supra,
In the case of intentional spoliation of evidence by a party, we observed in Cedars-Sinai that a tort remedy appeared of limited utility in view of the nontort remedies that may compensate injured parties and punish and deter a party to litigation who indulges in such misconduct. First among these remedies is the evidentiary inference permitted by Evidence Code section 413, which permits the trier of fact to infer that evidence suppressed by a party was unfavorable to the party. (Cedars-Sinai, supra, 18 Cal.4th at pp. 11-12.) We also pointed to discovery sanctions prescribed by Code of Civil Procedure section 2023, disciplinary sanctions against attorneys guilty of spoliating evidence or of participating in the suppression of evidence, and the criminal sanction for spoliation of evidence provided by Penal Code section 135.
Next, we observed in Cedars-Sinai that “[i]t seems likely that in a substantial proportion of spoliation cases the fact of harm will be irreducibly uncertain.” (Cedars-Sinai, supra,
In addition, we pointed out that imposition of liability—including punitive damages—could cause significant burdens disproportionate to the merit of a particular claim or to the effectiveness of the tort remedy as a deterrent. Meritless claims easily could be brought, and the threat of liability might cause individuals and entities to engage in unnecessary and expensive record-retention policies. (Cedars-Sinai, supra, 18 Cal.4th at pp. 15-16.) Finally, we pointed out that if the spoliation claim were tried concurrently with the underlying litigation, there would be “a significant potential for jury confusion and inconsistency,” whereas if the spoliation claim were brought after the conclusion of the underlying litigation, the result would be “duplicative proceedings” involving a “ ‘retrial within a trial’ ” and carrying the potential for inconsistent results. (Cedars-Sinai, supra,
In Cedars-Sinai we did not consider whether a tort remedy should be available for intentional spoliation of evidenсe by third parties. Many of the considerations that influenced us in Cedars-Sinai, however, guide us to conclude that no tort remedy should be available in such circumstances.
We consistently have cautioned against expanding tort liability to include litigation-related misconduct other than malicious prosecution. (Rubin v. Green (1993)
As in the case of spoliation of evidence by a party, addressed in Cedars-Sinai, a cause of action for third party spoliation of evidence would constitute derivative litigation in which a party to the original lawsuit asserts that litigation-related misconduct affected the accuracy оr reliability of the first judgment. The goal of having disputes resolved
It is not the finality of the underlying judgment itself that is threatened, either in the case of spoliation by a party or in the case of third party spoliation. The judgment in the underlying suit would not be vacated or overturned as a result of a subsequent tort claim for spoliation, whether committed by a party or by another, and in both instances the alleged wrong is the spoliation—which is not necessarily addressed in the underlying litigation. Yet in Cedars-Sinai, we pointed with disapproval to the endless round of litigation, derivative to the first lawsuit, that would be provoked by recognition of the spoliation tort (Cedars-Sinai, supra, 18 Cal.4th at pp. 9-11), and recognized a need for “finality of adjudication.” (Id. at p. 10.) The same concern applies to third party spoliation. We are reluctant to provide disappointed litigants a second opportunity to seek the compensation they sought in the original lawsuit, even if they seek it against a party not involved in the original lawsuit. We also are reluctant to require courts to provide a forum for parties who seek to avoid the effect of a prior judgment by asserting that a collateral wrong improperly affected the verdict. The spoliation tort not only would provide the disappointed litigant a second opportunity to seek compensation, it would require retrial of the first case in order to permit the plaintiff to demonstrate in what respect the alleged spoliation altered the outcome of the first trial. Indeed, the matter might still continue, for spoliation in the second trial might give rise to yet a third lawsuit.
Although these considerations apply primarily to actions brought after the conclusion of the underlying litigation, different problems occur in the event the spoliation claim were to be tried concurrently with the underlying litigation. Such a claim would have to be alleged, as in the present case, before discovery had disclosed whether the allegedly spoliated evidence actually had been destroyed or whether its loss is significant. These circumstances would lead to the bringing of premature and meritless claims—a situation that in turn might lead to later derivative claims of malicious prosecution. Further, as we pointed out in Cedars-Sinai, concurrent litigation of the claims would give rise to a “significant potential for jury confusion and inconsistency.” (Cedars-Sinai, supra,
Our desire tо avoid derivative litigation is not limited to that premised upon misconduct allegedly committed by a party to litigation. As we recognized in Cedars-Sinai, perjury by a witness, though it distorts the factfinding process and unfairly may deprive a litigant of compensation for wrong, is not actionable in tort. (Cedars-Sinai, supra,
Third party spoliation of evidence is analogous to perjury by a witness, and the same, endless spiral of lawsuits over litigation-related misconduct could ensue were we to recognize a tort cause of action for third party
We acknowledge that perjury and spoliation are distinguishable in the sense that if pequry is discovered before or during trial, it may be possible to expose the falsehood through cross-examination, whereas the absence of evidence that has been suppressed by a nonparty sometimes may foreclose a claim altogether. Nonetheless, our desire—for the benefit of litigants, witnesses, and the courts—to avoid endless litigation makes us reluctant to permit a party who is disappointed in the verdict in one case to have a second opportunity to obtain compensation or other relief from a new defendant whose spoliation of evidence assertedly brought about the disappointing verdict on the underlying claim. As noted, to the extent it is asserted that spoliation could be litigated and compensated in one unitary action, the same potential for meritless claims and confusion of the jury exists in third party spoliation situations as we recognized in Cedars-Sinai in the case of spoliation by a party.
In addition, to the extent that a real problem of intentional spoliation by third parties exists, it often will be the case that such spoliation will be exposed in the trial of the underlying action. First, in many instances the third party spoliator actually may not be a total stranger to the litigation, for little motivation for intentional spoliation exists when the third party is wholly divorced from the litigation. As in the present case, defendant’s action as a first party spoliator may be subject to exposure at trial and may affect the verdict so that the plaintiff will obtain the compensation to which he or she is entitled. Second, if the third party spoliator is acting at the behest of a party, a negative inference may be drawn against that party (see, e.g., People v. Williams (1997)
Another consideration that weighed heavily in Cedars-Sinai—the uncertainty of the fact of harm arising from spoliation—is equally applicable in third party spoliation. As in the case of spoliation of evidence by a party, in the case of third party spoliation “[i]t seems likely that in a substantial proportion of spoliation cases the fact of harm will be irreducibly uncertain. In such cases, even if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable [to a party], there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim’s favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to mеaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation.”
Not only the fact of injury, but also the element of causation would be an intractable element of proof. Assuming injury, the extent to which the destruction of evidence caused a different result in the underlying litigation frequently would be a matter of speculation, given the discretion vested in the court and the jury. (See Federated Mut. v. Litchfield Prec. Comp. (Minn. 1990)
Moreover, as noted, the same potential for jury confusion and for inconsistency would ensue if third party claims were litigated simultaneously with the original litigation, and in a separate action there would be the same “duplicative proceedings without avoiding the potential for inconsistent results. The spoliation action would require a ‘retrial within a retrial,’ for all of the evidence in the underlying action would have to be presented again so that the spoliation jury could determine what effect the spoliated evidence would have had in light of all the other evidence.” (Cedars-Sinai, supra,
We observe that when our lower courts originally—and mistakenly— recognized a cause of action for intentional spoliation of evidence by a party to litigation, they did so in large part because they considered the cause of action to be analogous to the tort of intentional interference with prospective economic advantage. (See Smith v. Superior Court (1984)
In addition, the burdens and costs of recognizing a tort remedy for third party spoliation are considerable—perhaps even greater than in the case of first party spoliation. The same burdens identified in Cedars-Sinai exist, namely, jury confusion and the potential for abuse in bringing the action and for inaccurate and arbitrary verdicts, magnified by the potential for punitive damages (see Cedars-Sinai, supra,
We recognize that the salient distinction between first party and third party spoliation of evidence is the disparity in sanctions available within the confines of the underlying litigation. In the case of first party spoliation, these sanctions serve not only to deter spoliation of evidence, but may promote compensation for the underlying injury in spite of the absence of the spoliated evidence. The evidentiary inference permitted by Evidence Code section 413 in the case of willful suppression of evidence by a party, as well as most discovery sanctions, ranging from issue preclusion to dismissal, are not available when a person who is not a party to the litigation and who is not an agent of a party intentionally has destroyed evidence.
The victim of third party spoliation, however, is not entirely helpless. Some discovery sanctions are available to punish third party spoliation, including monetary and contempt sanctions against persons who flout the discovery process by suppressing or destroying evidence. (See Code Civ. Proc. §§ 2020, subd. (h), 2023, subd. (b)(1),(5), 2025, subds. (j)(3), (o); see Brun v. Bailey (1994)
We do not believe that the distinction between the sanctions available to victims of first party and third party spoliation should lead us to employ the burdensome and inaccurate instrument of derivative tort litigation in the case of third party spoliation. We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. To the extent third parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty. Criminal sanctions, of course, also remain available.
If existing remedies appear limited, that may well be because third party spoliation has not appeared to be a significant problem in our courts. After all, the nonparty who is not acting on behalf of a party but is independently motivated to destroy evidence with the intent to interfere in the outcome of litigation between other parties must be a rarity, perhaps because such destruction can subject the nonparty to criminal prosecution.
Finally, our conclusion that recognition of a tort cause of action for intentional third party spoliation would be unwarranted is strengthened by the realization how anomalous it would be to impose such liability— including potential punitive damages—upon those spoliators who are third parties to litigation, when we have concluded in Cedars-Sinai
In sum, we conclude that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.
Plaintiff contends that her constitutional right of free access to the courts bars private persons from destroying objects of potential relevance to a lawsuit, and requires that we recognize a spoliation cause of action against nonparties as well as parties to the litigation. Plaintiff cites cases discussing a litigant’s right of access to the courts, but these opinions do not suggest that recognition of this right requires that private persons be barred from disрosing of objects that may prove to be relevant in a lawsuit, nor that this right includes a constitutional right to hold the offending private party accountable under common law tort principles for its destruction of evidence. We are unaware of any authority investing parties to litigation with a constitutional right to sue other private persons in a common law tort action for interference with the party’s ability to prevail in a lawsuit. (See, e.g., Werner v. Southern Cal. etc. Newspapers (1950)
III
We reverse the judgment of the Court of Appeal denying the petition for writ of mandate and remand the cause to the Court of Appeal for further proceedings consistent with this opinion.
Baxter, J., Chin, J., and Brown, J., concurred.
Notes
We grant plaintiff’s request for judicial notice to the extent it requests that we take notice of the trial court’s order granting Valleylab’s motion for summary judgment. (Evid. Code, § 452, subd. (d).) In all other respects, the parties’ requests for judicial notice are denied because the material submitted for our notice is irrelevant.
As in Cedars-Sinai, supra,
As in Cedars-Sinai, supra,
Of course, in light of our conclusion that a cause of action for intentional spoliation of evidence by a third party does not exist, no punitive damages claim will lie with respect to the second cause of action alleged in plaintiff’s complaint, regardless whether she complied with section 425.13(a). Accordingly, we do not consider the contentions of the parties with respect to the applicability of that statute to the present case.
Plaintiff’s reference to a potential violation of 42 United States Code section 1985(2) is misplaced because plaintiff, in her complaint, made no attempt to allege a violation of that provision.
Concurrence Opinion
I concur fully in the majority’s conclusion that there is no tort cause of action for intentional “third party” spoliation of evidence, and I have signed the majority opinion. I withheld my signature and approval from the majority’s related opinion in Cedars-Sinai Medical Center v. Superior Court (1998)
As my concurring opinion in Cedars-Sinai made clear, my refusal to sign the majority opinion in that case was based on procedural considerations. Similar procedural concerns are present here. I therefore write separately to explain why I have taken a different action here than there.
In an opinion signed by six members of the court, Cedars-Sinai declined to recognize a tort cause of action for intentional “first party” spoliation of evidence. The majority reached the foregoing issue even though it was raised for the first time in the petition for review, and even though the only question litigated and decided in the lower courts was whether a punitive damages claim could be stated under Code of Civil Procedure
Writing separately in Cedars-Sinai, I indicated that I did not necessarily disagree with the majority insofar as it declined to recognize the proposed tort on the ground its disadvantages far outweighed any benefits. However, I concluded that I could not vote on the substantive question addressed by my colleagues in that case because it was not “properly before the court.” (
Here, the question whether to recognize intentional third party spoliation is presented under procedural circumstances similar to those at issue in Cedars-Sinai, supra,
On the one hand, nothing in the present case leads me to reconsider or disavow the views expressed in my concurring opinion in Cedars-Sinai. I continue to believe that this court should generally avoid “reaching out” to decide questions not raised or resolved in the lower courts. (
On the other hand, I recognize that this argument was rejected by a majority of the court in Cedars-Sinai for reasons which, if persuasive there, apply with equal force here. To withhold my vote on the merits in the present сase would thus serve little purpose. Indeed, to formally adhere to the procedural stance I took in Cedars-Sinai would prevent me, once again, from participating in a significant legal question which all of my colleagues are determined to decide, and which the majority resolves in a particularly compelling fashion.
For the foregoing reasons, I have signed the attached majority opinion.
Code of Civil Procedure section 425.13(a) states in pertinent part, “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” All further unlabeled statutory references are to the Code of Civil Procedure.
I note that defendant suggested in the Court of Appeal that if section 425.13(a) did not apply to the punitive damages claim appended to plaintiff’s cause of action for intentional spoliation, then “it is time to reexamine the ‘tort’ of spoliation.” This passing reference appeared in the reply brief filed in support of defendant’s petition for a writ of mandate, and was not addressed by the Court of Appeal in the opinion currently under review.
Dissenting Opinion
Dissenting.—During surgery, a young woman is severely burned when a medical device ignites flammable gases that have collected under the surgical drapes. Alleging that a defect in the medical device caused the accident, she sues the device’s manufacturer to obtain compensation for her injuries, but someone other than the manufacturer destroys the device. Without the device, she cannot prove that it
I disagree. I would recognize a narrowly drawn tort remedy for the intentiоnal destruction of evidence by someone not a party to the underlying cause of action to which the evidence is relevant, when the evidence is destroyed with the intent of affecting the outcome of the underlying action.
I
At issue here is only plaintiff’s cause of action for intentional third party spoliation, that is, the intentional destruction or suppression of evidence by someone not a party to the underlying cause of action to which the evidence is relevant. In Cedars-Sinai Medical Center v. Superior Court (1998)
“In considering whether to create a tort remedy . . . , we begin with certain general principles of tort law. ‘A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured.’ (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 6, p. 61 [original italics].) At issue here is whether to impose on parties to a lawsuit a duty to avoid the intentional destruction of evidence relevant to the lawsuit. As we have stated, the concept of duty ‘ “is a shorthand statement of a conclusion, rather than an aid to analysis in itself.” ’ (Dillon v. Legg (1968)
In beginning this analysis, it is important to keep in mind that “[t]he intentional destruction of evidence is a grave affront to the cause of justice and deserves our unqualified condemnation.” (Cedars-Sinai, supra,
In Cedars-Sinai, supra,
A. Availability and Deterrent Effect of Existing Nontort Remedies
Central to this court’s decision in Cedars-Sinai, supra,
As we pointed out in Cedars-Sinai, supra,
Nontort remedies for third party spoliation are much more limited, as the majority grudgingly admits. The evidentiary inference of Evidence Code section 413 and most of the sanctions of Code of Civil Procedure section 2023 just mentioned cannot be used at all against a third party spoliator, for they are available only against a party to the underlying lawsuit. (See Code Civ. Proc., § 2023, subd. (b)(2) [issue sanctions available only against party], (3) [evidence sanctions available only against party], and (4) [terminating sanctions available only against party]; Evid. Code, § 413 [evidentiary inference available only against party].) Only monetary and contempt discovery sanctions are even potentially available against a third party spoliator, and even these are further restricted by the limitation of section 2023 to “conduct that is a misuse of the discovery process.” (Code Civ. Proc., § 2023, subd. (a).) It is doubtful whether instances of third party spoliation occurring before any party has made a formal discovery request can be characterized as misuses of the discovery process. Likewise, the criminal prohibition against the destruction of evidence, Penal Code section 135, applies only when a person destroys evidence “knowing [it] ... is about to be produced in evidence upon any trial, inquiry, or investigation . . it is therefore similarly doubtful whether it would apply to evidence destroyed by a nonparty before any request for its production.
Because the nontort remedies for third party spoliation, unlike those for first party spoliation, are not strong and effective deterrents, this factor weighs heavily in favor of recognizing a tort remedy for third party spoliation.
B. Compensation of the Spoliation Victim Under Existing Nontort Remedies
Tort law seeks not only to deter wrongful conduct but also to compensate those injured by such conduct. The nontort remedies for third party spoliation do not, however, compensate the victim for the harm caused by the destruction of evidence, unlike the nontort remedies for first party spoliation. The evidentiary inference and discovery sanctions available in first party spoliation cases compensate for the harm of spoliation by making it more probable that the spoliation victim will prevail on the merits of the underlying lawsuit even without the spoliated evidence. By contrast, the nontort remedies for third party spoliation do not increase the spoliation victim’s likelihood of prevailing on the underlying lawsuit, nor do they otherwise ameliorate the harm to the spoliation victim. Thus, when third party spoliation does occur the harm to the victim will generally go uncompensated. This is a crucial distinction between first party spoliation and third party spoliation, and it is another very strong reason for recognizing a tort remedy in intentional third party spoliation cases.
C. Public Policy Favoring the Finality of Judgments
Also weighing in favor of recognizing a tort remedy for third party spoliation is the harmony
That concern is absent here, because tort liability for third party spoliation does not pose a threat to the finality of adjudication. Nothing in the policy favoring finality of adjudication prevents different parties from litigating the same issue in different proceedings. A third party spoliator by definition is not a party to the underlying cause of action to which the spoliated evidence is relevant, and the spoliator has not litigated with the spoliation victim any issue relating to that evidence or to the underlying cause of action. Any judgment against the third party spoliator would not alter the previous determination of liability between the spoliation victim and the spoliation victim’s opponent in the underlying action. A tort remedy would therefore have no effect, either formally or practically, on the judgment rendered on the cause of action to which the spoliated evidence was relevant and would not clash with the public policy favoring finality of adjudication.
II
Because of the limited and noncompensatory nature of the available nontort remedies and the absence of any conflict with the finality of judgments, I would recognize a narrowly drawn tort remedy for intentional third party spoliation. Furthermore, because I would limit liability to spoliation done with the intent of harming the spoliation victim’s ability to bring or defend against a legal claim, a tort remedy would not impose a general duty on all persons to preserve everything that may be of relevance to the lawsuit of another, as I explain below.
One principle underlying our tort system is that the circumstances in which it imposes liability and the extent of liability it imposes must be reasonably foreseeable, making it possible for those subject to it to shape their conduct to avoid causing injury and incurring the cost of liability. Ordinarily, one can in any given set of circumstances identify without too much trouble the harm that tort law seeks to prevent, the potential class of victims who would be harmed, and the potential pathways of causation of the harm. Using this information, one can identify thе conduct that will efficiently avoid the harm or reduce the risk of its occurrence.
To ensure that tort liability for third party intentional spoliation of evidence complies with the principle that the circumstances of liability should be foreseeable, I would require the following: It should not be sufficient that the spoliator merely intend to cause the act of spoliation. The spoliator must intend that the act of spoliation affect the outcome of the underlying cause of action to which the evidence is relevant; otherwise stated, the spoliator must intend to harm the spoliation victim’s ability to bring or defend against a legal claim.
Because of this intent requirement, there would be no liability if the missing evidence simply has been discarded or misplaced in the ordinary course of events. “Many corporations and other entities, for example, have document retention policies under which they destroy at stated intervals documents for which they anticipate having no further need.
In addition, I agree with defendant hospital that, to reduce uncertainty in the fact of harm, the underlying action shоuld be resolved before the spoliation victim may proceed with an intentional third party spoliation claim. More specifically, I would require that the spoliation victim must have prosecuted the underlying action to a conclusion on the merits or to a settlement. This reduces the speculativeness of the spoliation tort remedy, for if the underlying cause of action were never brought or was still pending, the trier of fact in the spoliation action would have to decide not only what the nature of the spoliated evidence would have been, but what other evidence and what legal theories would have been put forth by the parties at a future trial or other proceeding and what the outcome of that future trial or proceeding would have been. (See Federated Mut. v. Litchfield Prec. Comp. (Minn. 1990)
Applying to this case my conclusion that we should recognize a tort remedy for intentional third party spoliation of evidence, I would hold that plaintiff’s complaint fails to plead adequately such a cause of action. Specifically, plaintiff has not adequately alleged that defendant acted with the intent to harm plaintiff’s prospects in its litigation against third parties. I would remand the action and instruct the trial court to give plaintiff an opportunity to attempt to plead an intentional third party spoliation cause of action, for “fairness demands that plaintiff be given an opportunity to give that issue her best shot.” (Williams v. State of California (1983)
III
The majority’s reasons for not recognizing a tort remedy for intentional third party spoliation do not withstand scrutiny.
The majority begins by stating that our case law disfavors “derivative” litigation arising out of events occurring in a previous lawsuit. Our case law, however, is more accurately described as disfavoring derivative litigation only if effective nontort remedies exist to vindicate the injured party’s interests. The majority relies on discussions in three cases that generally point out the costs of derivative litigation; in eaсh case, this court concluded that the litigation-related misconduct alleged by the plaintiff (false statements made in the course of litigation, improper solicitation of clients, filing frivolous litigation) were problems that had adequate existing remedies available, often within the underlying litigation in which the misconduct occurred. (See Rubin v. Green (1993)
The majority then turns to the related policy of finality in adjudication. It asserts that a tort remedy for third party spoliation threatens finality of adjudication just as
The majority tries to analogize third party spoliation to third party perjury, claiming that because there is no remedy for the latter there should be no remedy for the former. But, as the majority acknowledges, the situations are dissimilar, because the perjurer must testify in the underlying action and give a version of the events in question. The perjurer’s account may be impeached by cross-examinatiоn or by other testimony or evidence. Successful impeachment can powerfully affect the jury’s ultimate conclusion as to what happened, thus giving the victim of the perjury a means within the underlying action of counteracting the effect of the perjury. In addition, the prospect of cross-examination and impeachment at trial is a deterrent to perjury.
But the spoliation victim is unable to similarly counteract in the trial of the underlying action the effects of third party spoliation. Unlike perjured testimony, destroyed evidence is not a false version of events presented to the jury that the spoliation victim can disprove. Destroyed evidence is a nullity so far as the jury is concerned; evidence that does not exist cannot be presented to the jury and plays no role in its deliberations.
Moreover, the Legislature has decided there can be no civil cause of action for perjury by enacting Civil Code section 47, which immunizes statements made in judicial proceedings from civil liability. (Silberg v. Anderson, supra,
Nor would a tort remedy for intentional third party spoliation create “endless” litigation, as the majority hyperbolically puts it. It would create a single lawsuit between the spoliation victim and the sрoliator.
The majority also maintains that we should reject a tort remedy for intentional third party spoliation because it will often be uncertain whether and to what extent an act of spoliation might have affected the outcome in the underlying cause of action and thereby caused harm to the spoliation victim. But there is nothing unique about third party spoliation in its potential for uncertainty in the fact or extent of harm, for almost every tort can present the same uncertainty. It is for this reason that causation and resulting harm are elements of every tort. They provide sufficient protection against uncertain claims in the context of other torts, and there is no reason to expect that they will not do so in the case of third party spoliation as well. This court has never refused to recognize a cause of action simply because a party may have difficulty in proving its elements. And, as discussed above, requiring the spoliation victim to prosecute the underlying action to settlement or judgment as I propose further reduces the speculativeness of the harm caused by the spoliation.
Moreover, in legal malpractice cases our law similarly requires the plaintiff to put on a “trial within a trial”—a retrial of the underlying action in which the mаlpractice occurred requiring the plaintiff to show that, but for the malpractice, the outcome of the underlying action would have been different. (United Community Church v. Garcin (1991)
The majority also asserts that a tort remedy would impose great burdens on businesses to preserve every document and item that might possibly turn out to have some marginal evidentiary value in someone’s lawsuit
Nor is the majоrity correct that it is a rarity for someone other than a party to have an incentive to destroy evidence to alter the outcome of a lawsuit. For example, an indemnity agreement between a party to the lawsuit and third party may give the indemnitor an economic incentive to destroy evidence unfavorable to its indemnitee if it is an indemnitor of the defendant in the underlying action and will be liable for any judgment against the defendant, or if it is an indemnitor of the plaintiff and will be liable for the plaintiff’s damages unless the defendant is found liable.
Finally, the majority asserts that it would be anomalous to recognize a tort remedy for intentional third party spoliation when we have refused to do so for intentional first party spoliation. As I have explained, however, there are good reasons for the difference, principally the nontort remedies available in the case of intentional first party spoliation that are not available in the case of intentional third party spoliation.
Conclusion
“The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiff’s interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operаte as a bar to the remedy.” (Prosser & Keeton on Torts (5th ed. 1984) Introduction, § 1, p. 4.)
As the majority agrees, the intentional spoliation of evidence is a “ ‘grave affront to the cause of justice’ ” that deserves “ ‘unqualified condemnation.’ ” (Maj. opn., ante, at p. 469, quoting Cedars-Sinai, supra,
Mosk, J., and Werdegar, J., concurred.