Spoliation – Attorney Liability

I have reported on a number of spoliation cases in this blog recently, but this is the first on against an attorney.  Plaintiff argued that Plaintiff’s counsel had failed to inspect or secure evidence in the possession of the plaintiff’s decedent’s employer in the underlying products liability action.  Plaintiff also filed a spoliation claim against the employer.  Both claims were dismissed, and Plaintiff appealed.

The Arkansas Supreme Court noted that a first-party spoliation claim is not recognized in Arkansas.  After reviewing law from across the nation on point, the Court said that "we believe it would be inconsistent for us to hold that a third party,  who is not a party to the underlying action, could be liable for damages, including the possibility of punitive damages, for the same conduct that would not be actionable if committed by a party to the lawsuit. Furthermore, we cannot recognize a new tort as a means to deter third-party spoliation of evidence when the result of such a tort would create potentially endless litigation over speculative loss. A victim of third-party spoliation should seek a remedy in a means other than an individual tort claim."  [Citation omitted.]

Read Downen v. Redd, NO. CV-2004-107 I (Ark. S. Ct. 11/02/06) here.  Use the "Search" function to find other spoliation cases on this blog.