If you are suing a person, sometimes relevant documents go missing which could help or harm your case. If documents which you need to prove your case go missing due to the acts of the defendant, you may consider a remedy against the defendant based on the doctrine of spoliation. In a legal context, the term “spoliation” refers to the destruction, mutilation, alteration, or concealment of evidence. It has been described as a form of cheating which threatens to undermine the integrity of the civil trial process.
The doctrine is an evidentiary rule. Four elements must be proved: (1) the evidence has been destroyed; (2) the evidence destroyed was relevant to an issue in the lawsuit; (3) legal proceedings were pending; and (4) the destruction of the documents was an intentional act indicative of fraud, or an intention to suppress the truth. The sanctions or remedies available to litigants who suffer due to spoliation include procedural remedies, evidentiary presumptions in favour of the plaintiff, contempt proceedings, and costs orders. These sanctions or remedies may be sought in the lawsuit where the spoliation takes place.
There is some controversy in the courts about whether a separate action for damages can be sustained solely on the ground that documents have been destroyed. In order for an action to be sustainable, there must be an independent tort of spoliation. What is a “tort”? The law of torts determines when a person who causes harm, called the “tortfeasor,” must pay compensation to the person who suffers it. The word “tort” is derived from the French word meaning “wrong.” The law of torts is, therefore, the law of wrongdoings.
A strong argument against the recognition of an independent tort of spoliation is its inherently speculative nature with respect to injury, causation, and damages. One judge has described the problem this way: “It is impossible to know what the destroyed evidence would have shown. It would seem to be sheer guesswork, even presuming that the destroyed evidence went against the spoliator, to calculate what it would have contributed to the plaintiff’s success on the merits of the underlying lawsuit. Given that the plaintiff has lost the lawsuit without the spoliated evidence, it does not follow that he would have won it with the evidence.”
Some jurisdictions now recognize the tort of spoliation. In a lawsuit based on the doctrine, the burden of proof shifts from the plaintiff, who normally must prove the case, to the defendant. Once it is established that the spoliator’s action resulted in the plaintiff being deprived of the ability to prove or disprove some part of the case, the burden of proof with respect to whether the spoliator acted deliberately and with fraudulent intent shifts to the spoliator as the creator of the predicament.