Spoliation as Evidence of Guilt
In determining what inferences to draw from the evidence against a party, the jury is permitted to consider a party's willful suppression of evidence. Evid. Code Section 413. In Thor v. Boska (2nd Dist. 1974) 38 Cal.App.3d 558, a doctor, who was sued for malpractice, failed to produce his original charts. His explanation was that, after copying the records verbatim to make them more legible, he must have thrown away the originals. The fact that "the defendant was unable to produce his original clinical record concerning his treatment of the plaintiff after he had been charged with malpractice, created a strong inference of consciousness of guilt on his part."
Today, it is increasingly more common for parties to suppress harmful evidence, such as email. If they do, their conduct is admissible at trial. We had a case where the chief executive officer removed back-up tapes of electronic data from the company's safe. Neither the officer nor the company produced the tapes during discovery. At trial, the officer's removal of the tapes was powerful evidence that helped convince the jury to find fraud and award punitive damages.
Jeffrey Huron is the founder of Huron law group, a litigation firm that handles business, real estate and entertainment disputes.
A spoliator of evidence in a legal action is an individual who neglects to produce evidence that is in her possession or control. In such a situation, any inferences that might be drawn against the party are permitted, and the withholding of the evidence is attributed to the person's presumed knowledge that it would have served to operate against her.
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3 Business