“Spoliation” occurs when a party destroys evidence in order to disadvantage another party. In Louisiana, the rule is that a claim of spoliation is only recognized when there is intentional, as opposed to negligent, spoliation of evidence. However, the 2016 decision in Sayre v. PHK (Lake Charles), LLC, No. 15-859 (La. App 3 Cir. 2016); 188 So. 3d 428 calls into question the true impact of this rule.
In Sayre, a casino guest tripped and fell. The fall and part of the subsequent investigation were recorded on video surveillance by the casino. The video revealed that the post-incident investigation was not performed in accordance with the casino’s formal, written policies and procedures. Although four witnesses could be seen in the video, their identity and statements were not obtained or preserved, contrary to policy. Similarly, the defendant failed to preserve the video of the investigation as required.
During discovery, several witnesses denied any independent recollection of the incident. The plaintiff argued that their version of events would have been available had the casino followed its normal protocol. Claiming prejudice as a result of the casino’s actions, the plaintiff asked the trial court to give the jury an instruction that an adverse presumption should be made against the casino that the witnesses’ testimony would have been unfavorable to the defense. The trial court refused, noting that all of the cases cited by the plaintiff involved situations where evidence had actually been collected, but was not available for use at trial. In Sayre, the witness statements had never been taken.
Without the adverse presumption, the jury ruled against the plaintiff. On appeal, the Third Circuit held that the instruction should have been given. Even though there was no evidence that the casino intentionally acted to spoliate evidence, Sayre concluded that the actions of the casino impermissibly impaired the plaintiff’s ability to present her claim. Instead of remanding the case, the Sayre court reversed and rendered a verdict for the plaintiff.
While the decision in Sayre did not overtly create a tort claim for negligent spoliation, it exemplifies how a mishandled investigation can lead to the same consequences as spoliation. Nevertheless, the impact of Sayre may ultimately prove to be limited to situations where a party violates its own very specific accident investigation protocol which results in the other party not being able to obtain evidence which was ultimately needed to prove their case at trial.