No Cause of Action for Spoliation of Evidence in South Carolina

The South Carolina Supreme Court has ruled that there is not cause of action for the negligent spoliation of evidence in that state.

In Cole Vision Corp. v. Hobbs,  No. 26988 (S.C. 6/20/11) the defendant counterclaimed and sued plaintiff for negligent spoliation of evidence.  Defendant maintained that plaintiff lost a key case of evidence that he needed to defend a malpractice claim brought by a former patient.

The Court held that "South Carolina does not recognize an independent tort for the negligent spoliation of evidence, third-party or otherwise."    After referencing the differing views reached by other courts across the country on this subject, the court said as follows:

We also believe public policy considerations weigh heavily against adopting the tort in this State.  First, other remedies are already available with respect to first-party claims.  For example, the court of appeals has struck a party’s pleadings or approved the use of adverse jury instructions against a party found to have lost or destroyed relevant evidence in the case where the evidence was to be presented. See, e.g.Stokes v. Spartanburg Reg’l Med. Ctr., 368 S.C. 515, 522, 629 S.E.2d 675, 679 (Ct. App. 2006) (ordering a new trial for failure to give a jury instruction on the adverse inference of the import of evidence lost or destroyed by the defendant); QZO, Inc. v. Moyer, 358 S.C. 246, 258, 594 S.E.2d 541, 548 (Ct. App. 2004) (affirming the circuit court’s decision to strike appellant’s pleadings after appellant destroyed relevant evidence).  However, Hobbs foreclosed his opportunity to obtain this relief when he settled the case brought by the Lewises. 

The speculative nature of the damages calculation also militates against recognizing a negligent spoliation cause of action.  In Trevino v. Ortega, 969 S.W.2d 950 (1998), the Supreme Court of Texas, in rejecting the tort of evidence spoliation, found, "[e]ven those courts that have recognized an evidence spoliation tort note that damages are speculative.  The reason that the damages inquiry is difficult is because evidence spoliation tips the balance in a lawsuit; it does not create damages amenable to monetary compensation." 969 S.W.2d at 952-53; see also Coprich v. Superior Court, 80 Cal. App. 4th 1081, 1089 (Ct. App. 2000) (articulating the uncertainty concerning the nature and effect of missing evidence in negligent spoliation claims).  This is particularly true where, as here, the parties to the underlying suit have settled.

The final policy consideration which weighs against adoption of the tort of negligent spoliation concerns the potential for duplicative and inconsistent litigation.  If a subsequent claim for spoliation is permitted by this Court outside of the original action, that claim would require a "retrial within a trial in which all the evidence presented in the underlying action would be presented again for the trier of fact to determine what effect the spoliated evidence might have had in light of the other evidence." Coprich, 80 Cal. App. 4th at 1088-89.  This could occur regardless of whether the trial court in the principal action determined that the spoliation warranted sanctions or adverse jury instructions, thus potentially giving rise to inconsistent results. 

Hobbs was not left completely without some relief, however.  The Court explained that 

our conclusion that Hobbs is unable to bring an independent claim does not preclude him from asserting spoliation as a defense to the declaratory judgment action brought by Cole Vision and Sears.  "[T]he effect of the doctrine of spoliation, when applied in a defensive manner, is to allow a defendant to exculpate itself from liability because the plaintiff has barred it from obtaining evidence . . . ." Robert L. Tucker, The Flexible Doctrine of Spoliation of Evidence: Cause of Action, Defense, Evidentiary Presumption, and Discovery Sanction, 27 U. Tol. L. Rev. 67, 75 (1995).  Other states have allowed spoliation to be used as a defense while denying its availability as an independent cause of action. See, e.g.Hirsch v. General Motors Corp., 628 A.2d 1108, 1118-19 (N.J. Super. Ct. Law Div. 1993) (discussing the use of negligent spoliation in New Jersey).  Here, Hobbs’ allegation that Cole Vision lost a key piece of evidence which it was contractually obligated to maintain, while not a legally cognizable counterclaim, remains a viable defense in this action for indemnity. 

Those researching the law on this subject will find that this opinion will put them well on the way to discovering the law of the 50 states on this issue.  While the decision does not reference the law of all of the states on this point, it does provide enough citations to cases and law review articles that the research effort will be greatly reduced.