“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.)

Spoliation includes the “significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223; Willard v. Caterpillar, Inc. (1995) 40 Cal.App.4th 892, 907.) In other words, failure to act to prevent the destruction of potential evidence is equivalent to intentional destruction of evidence. (Coprich v. Super. Ct. (2000) 80 Cal.App.4th 1081, 1089–1090.)

There is no tort remedy available for negligent spoliation committed by a party to the action. (Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1089–1090.) While spoliation of evidence is not a tort that is actionable, it may be remedied by the imposition of a broad range of sanctions including monetary, issue, evidence and terminating sanctions. (Williams, supra, 167 Cal.App.4th at 1223.)

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.)

To prevail on a motion seeking discovery sanctions for negligent spoliation, the moving party must show that the opposing party failed to preserve evidence and that the loss of this evidence has a substantial probability of damaging the moving party's litigation position. (Williams, supra, 167 Cal.App.4th at p. 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.)

“The statutory requirement that there must be a failure to obey an order compelling discovery before the court may impose a nonmonetary sanction for misuse of the discovery process provides some assurance that such a potentially severe sanction will be reserved for those circumstances where the party's discovery obligation is clear and the failure to comply with that obligation is clearly apparent.” (New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1423.)

In New Albertsons, the Court expressed concern “about meritless spoliation claims where the evidence was destroyed innocently in the ordinary course of business.” (New Albertsons, Inc. v. Super. Ct. (2008) 168 Cal.App.4th 1431.) The Court also acknowledged that the “uncertainty as to what the spoliated evidence would have shown created a risk that the spoliator could be found liable for damages even if the spoliated evidence would not have changed the outcome of the underlying litigation.” (Id. at 1429; see also Cedars-Sinai Med. Ctr., supra, 18 Cal. 4th at 14.) Based on these considerations, the New Albertsons court stated:

“Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” (Id. at 1431.)

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.)

“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.)