From Napier v. Cinemark, 2009 U.S. Dist. LEXIS 31318 (N.D. Okla. April 13, 2009):

Defendant moves to dismiss plaintiff's claim for tortious spoliation of evidence on the ground that it is not a recognized tort in Oklahoma. Plaintiff concedes that there is no Oklahoma case law recognizing tortious spoliation of evidence, but argues that, if given the chance, the Oklahoma Supreme Court would likely recognize the tort. Thus, plaintiff argues that the question should be certified to the Oklahoma Supreme Court. A federal court sitting in diversity must apply the substantive law of the forum state. See Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1100 (10th Cir. 2002). Where the highest court of the forum state has not ruled on an issue, the Court must predict how that court would decide the question. See Vanover v. Cook, 260 F.3d 1182, 1186 (10th Cir. 2001); see also Carl v. City of Overland Park, 65 F.3d 866, 872 (10th Cir. 1995). The Court may consider dicta from the highest court of the forum state in predicting how that court would decide the question. See Lamb v. Rizzo, 391 F.3d 1133, 1138 (10th Cir. 2004).

"Spoliation is defined as '[t]he destruction of evidence . . . The destruction, or the significant and meaningful alteration of a document or instrument.' Spoliation occurs when evidence relevant to prospective civil litigation is destroyed, adversely affecting the ability of a litigant to prove his or her claim." Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185, 1202 (Okla. 1999) (citing BLACK'S LAW DICTIONARY 1257 (5th ed. 1979)). In Patel, the Oklahoma Supreme Court stated in dicta that "neither spoliation of evidence nor prima facie tort (for acts constituting spoliation of evidence) has ever been recognized by this court as actionable." Id. Plaintiff argues that, if given the chance, the Oklahoma Supreme Court would likely recognize the tort of spoliation of evidence. In support of that argument, plaintiff relies on the court's statement that it "need not consider today whether [the tort of spoliation of evidence] should be recognized as a viable cause of action" because the "conduct complained of in [Patel] does not present a case of spoliation of evidence." Id. However, the Oklahoma Supreme Court acknowledged that "most of the courts which have considered the issue have refused to recognize spoliation as an independent cause of action in tort." Id. There is nothing in the Patel opinion, nor in any other Oklahoma Supreme Court opinion, to suggest that it would be inclined to recognize the tort of spoliation. Moreover, the Tenth Circuit has stated that the dicta in Patel reflects that Oklahoma Supreme Court's view with respect to the tort of spoliation of evidence. Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 862 (10th Cir. 2005) (citing Patel and upholding the district court's rejection of plaintiff's claim of spoliation of evidence because "spoliation is not a recognized tort in Oklahoma."). There is no cognizable claim for spoliation of evidence in Oklahoma and no reason to certify the question to the Oklahoma Supreme Court. Accordingly, plaintiff cannot state a claim for spoliation of evidence upon which relief may be granted. The Court finds that the report and recommendation of the magistrate judge should be accepted as entered.