Commercial Litigation and Arbitration

No Tort Cause of Action for First-Part Spoliation in Vermont — Erie Prognosis

From Naylor v. Rotech Healthcare, Inc., 2009 U.S. Dist. LEXIS 120142 (D. Vt. Dec. 23, 2009):

The main issue is whether or not spoliation of evidence constitutes an independent cause of action. Federal courts look to state law to define the substantive claims in diversity cases such as this one. *** States are split on whether spoliation of evidence constitutes its own cause of action. Over the past few decades, some states have recognized spoliation of evidence as a free-standing tort claim. E.g., Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 905 A.2d 1165 (Conn. 2006). A majority of states, however, do not recognize spoliation as an independent tort. E.g., Fletcher v. Dorchester Mut. Ins. Co. , 437 Mass. 544, 773 N.E.2d 420 (Mass. 2002); Weigl v. Quincy Specialties Co., 158 Misc. 2d 753, 601 N.Y.S.2d 774 (Sup. Ct. 1993). These states simply use discovery sanctions in the underlying lawsuit to deal with spoliation issues. Sanctions are based on the trial court's inherent power to manage litigation, and range from simple negative inferences to deeming facts admitted to dismissing the entire suit. See West, 167 F.3d at 779-80.

Vermont has not addressed whether spoliation of evidence constitutes a free-standing tort claim. Over the years, the Vermont Supreme Court has used the traditional approach of discovery sanctions to punish a spoliator of evidence. See Lavalette v. Noyes, 124 Vt. 353, 205 A.2d 413 (Vt. 1964) (considering whether to apply a presumption of falsity, as a sanction for destruction of evidence); In re Campbell's Will, 102 Vt. 294, 147 A. 687 (Vt. 1929) (applying sanctions for spoliating evidence); Ellis J. Gomez & Co. v. Hartwell, 97 Vt. 147, 122 A. 461 (Vt. 1923) (noting the rule that willful destruction of evidence gives rise to rise to an inference that the contents would be injurious to the one who destroys it); Judevine v. Weaks, 57 Vt. 278 (1884) (noting a deposition is presumed to contain evidence against a party who suppresses it). It does not appear, however, that the Vermont Supreme Court has ever directly faced the question of whether spoliation of evidence constitutes an independent tort.

As an issue of first impression, this Court finds no separate cause of action exists under Vermont law for spoliation of evidence. First, spoliation is by definition an ancillary issue in a lawsuit; it never exists on its own. Therefore the appropriate place to deal with spoliation is in the underlying lawsuit. Second, discovery sanctions offer a wide range of remedies for spoliation. Courts can apply negative inferences, prohibit parties from introducing certain other evidence, deem facts admitted, award costs, dismiss the entire case, or enter default judgment, among other things. These sanctions are more than adequate to "(1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of the evidence." West, 167 F.3d at 779 (internal quotation omitted). Because a separate claim for spoliation would be cumbersome and unnecessary — at least where the alleged spoliator is a party to the underlying lawsuit — the Court concludes no such claim exists. See Fletcher, 437 Mass. at 551, 773 N.E.2d at 427.

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