“Spoliation” is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) Spoliation undermines the search for truth and fairness by creating a false picture of the evidence before the trier of fact by destroying authentic evidence. (Cedars-Sinai Med. Ctr. v. Super. Ct. (1998) 18 Cal.4th 1, 9.)

The Discovery Act does not specifically prohibit the intentional destruction of relevant evidence (“spoliation”) before a lawsuit has been filed or before a discovery request. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.4th 1414, 1419.) However, under California law, a party cannot destroy evidence “in response to a discovery request after litigation has commenced” or “in anticipation of a discovery request.” (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.)

“While there is no tort cause of action for the intentional destruction of evidence after litigation has commenced, it is a misuse of the discovery process that is subject to a broad range of punishment, including monetary, issue, evidentiary, and terminating sanctions.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)

Failure to act to prevent the destruction of potential evidence is equivalent to intentional destruction of evidence. (Id. at 1224; Coprich v. Super. Ct. (2000) 80 Cal.App.4th 1081, 1089–1090.)

Lawyer's Role

Civil discovery practices encourage lawyers to take charge of the client's evidence, including advising the client to preserve and maintain all relevant evidence, “not only because it is right for the client to do so but because the lawyers recognize that, even if the evidence is unfavorable, the negative inferences that would flow from its intentional destruction are likely to harm the client as much or more than the evidence itself.” (Cedars-Sinai, supra, 18 Cal.4th at pp. 12-13.)

Judge's Role

Generally speaking, when evidence has not been viewed or examined due to loss or destruction, “it may be impossible for the jury to meaningfully assess what role the missing evidence would have played.” (Cooper v. State Farm Mut. Auto. Ins. Co. (2009) 177 Cal.App.4th 876, 896.) “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 meaningfully 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.” (Cedars-Sinai, supra, 18 Cal.4th at 14.)

Even where these facts are present, however, the trial court has broad discretion in imposing discovery sanctions. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.) In exercising this discretion, the court should consider both the conduct being sanctioned and its effect on the party seeking discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Sanctions

To obtain sanctions based on the spoliation of evidence, the moving party must make an “initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” (Williams v. Russ (2008) 167 Cal.App.4th 1227.) Once the moving party establishes this basis, the burden shifts to the opposing party to show lack of prejudice from the loss of the evidence. (Id.)

Absent the proof of egregious intentional alteration or destruction of evidence, two facts are prerequisite to the imposition of non-monetary sanctions:

1. there must be a failure to comply with a court order; and
2. the failure must be willful.

(Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.)

“Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party.” (Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1223.) The sanction must be appropriate to the dereliction and not a windfall to the propounding party. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) In other words, discovery sanctions should not exceed that which is required to protect the interests of the propounding party and the integrity of the judicial system. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1293.)