Land of Oz: Spoliation of Evidence in Louisiana, 74 LA. L. REV. 507
Written by Danielle L. Borel*
(*Application pending for admission to La. State Bar)
The Louisiana courts continue to muddle the concept of spoliation, and a recent decision by the Louisiana Second Circuit Court of Appeals is no different. In Aymond v. American National Property & Casualty Company, the Second Circuit attempted to clarify the elements of spoliation. 130 So. 3d 10, 14 (La. Ct. App. 2d 2013), reh'g denied (Jan. 9, 2014). In doing so, the Aymond court quoted Arnold v. Brookshire Grocery Co., 10 So. 3d 1279, 1280 (La. Ct. App. 3rd 2009). Unfortunately, the way that the Arnold court describes the elements of spoliation is a logical fallacy. The elements stated by the Arnold court and quoted by the Aymond court are as follows: “(1) the intentional or negligent destruction of evidence and (2) that the first element was for the purpose of depriving the plaintiff of its use.” A person attempting to use a negligent act to satisfy the first element would never be able to satisfy the second element. It would be impossible to prove that the negligent act was done purposely.
Instead of reciting logical fallacies as the elements for an emerging tort, the courts should look to jurisprudence to determine what elements have emerged. A close look at spoliation decisions reveal that the tort of spoliation should be outlined as follows:
1) Defendant had knowledge of initiated or future lawsuit;
2) Defendant failed to produce evidence needed by the plaintiff; and
a. The evidence previously existed;
b. The lack of production of the evidence impairs the Plaintiff’s case; and
c. Defendant does not have an “adequate” explanation as to why the evidence cannot be produced.
3) Defendant had requisite level of Intent. (Intentional spoliation is actionable. Not all Louisiana Circuit Courts of Appeals recognize negligent spoliation as actionable.)
See Danielle Borel, The Land of Oz: Spoliation of Evidence in Louisiana, 74 La. L. Rev. 507 (Winter 2014). This outline better captures the goals of spoliation and eliminates frivolous claims. A better of understanding of spoliation will lead to more success for both litigants and courts.