In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.

The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.

The Supreme Court classified the insurer and salvage yard as “third parties” to the lawsuit and categorized the plaintiff’s claims against them as a negligent spoliation theory. In rejecting these third-party claims, the Court declared a claim for negligent spoliation to be against Louisiana public policy.

First, the tort would not deter future conduct, but would instead penalize a party unaware of potential wrongdoing. Second, liability for such a tort would be based upon great speculation regarding the value of the evidence at issue. Lastly, it would create unnecessary litigation and place a substantial burden upon society as a whole because third parties not even aware of litigation would be required to adopt cumbersome retention policies to reduce exposure to liability.

To prevent spoliation of evidence by third parties, a plaintiff who anticipates litigation should instead enter into an agreement with the third party or obtain a court order to preserve the evidence. By doing so, the plaintiff preserves a potential breach of contract claim regarding the evidence or can seek remedies for violation of the court order in the event the evidence is lost or destroyed.

Under Reynolds, the plaintiff cannot assert a claim for negligent spoliation of evidence. However, the Court confirmed that discovery sanctions and criminal sanctions remain viable against “first parties” who intentionally destroy evidence, Further, third parties may still be liable if a plaintiff can demonstrate a breach of a contract to preserve the evidence.