SPOLIATION OF EVIDENCE IN MISSISSIPPI
Like many things unique to Mississippi, the concept of Spoliation of Evidence has its roots in the Delta, specifically at its northern terminus.From the Honorable J. C. Gray, Chancellor of DeSoto County, we are provided the first statement of law regarding the destruction of evidence consequential to the subject litigation.Chancellor Gray stated,
The principle of the maxim Omnia proesumuntur in odium spoliatoris, as applicable to the destruction or suppression of a written instrument, is that such destruction or suppression raises the presumption that the document, if produced, would militate against the party destroying it, and that his conduct is attributable to this fact.Bott v. Wood, 56 Miss. 136, 1878 WL 7352 (Miss.1878).
This general concept has changed very little in the one hundred and twenty-eight years since the opinion was authored.The following will describe the contemporary development of Mississippi law regarding spoliation of evidence, and will outline recent progressions in the courts analysis of the issue of spoliation.
The Seminal Decision: Tolbert v. State
Tolbert is the decision from which all other opinions in Mississippi regarding spoliation of evidence proceed.On appeal of this murder case, the defendant argued that the prosecution intentionally destroyed a piece of exculpatory evidence, which could have resulted in dismissal of the charges against him .In citing to Washington v. State , and in accordance with California v. Trombetta , the Mississippi Supreme Court held that,
It is a general rule that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator.Such a presumption or inference arises, however, only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent .
Although the court in Washington did not cite to the US Supreme Courts opinion from Trombetta, its holding nonetheless comported with the two-prong test of the exculpatory nature and value of the evidence must have been (1) apparent before the evidence was destroyed and (2) of such a nature that the defendant could not obtain comparable evidence by other reasonable means .Ultimately, the Supreme Court of Mississippi upheld Tolberts conviction and life sentence, and in doing so, galvanized the law regarding spoliation of evidence in Mississippi.
This approach is also taken by Mississippi courts in the civil context.In Thomas v. Isle of Capri Casino the Supreme Court of Mississippi held,
When evidence is lost or destroyed by one party (the spoliator), thus hindering the other partys ability to prove his case, a presumption is raised that the missing evidence would have been unfavorable to the party responsible for its loss.781 So.2d 125, 133 (Miss.2001).
This statement of law was fleshed out in Young v. University of Mississippi Medical Center when the Court of Appeals of Mississippi stated,
A finding of spoliation my be supported by intentional or negligent destruction of evidence by the spoliator.For example, the negligent breach of a statutory duty to maintain medical records has been found to create a presumption that the lost records would have been unfavorable to the spoliator.Additionally, the presumption of unfavorability created by a finding of spoliation allows the fact-finder to draw a general negative inference from the fact of spoliation.914 So.2d 1272, 1277 (Miss.Ct.App.2005).
It appears that Mississippi courts will allow for a general negative inference with a showing of either intentional or negligent behavior on the part of the spoliator, clearly a much less rigorous standard.
Spoliation of Evidence as an Independent Tort?
With the advent of spoliation claims on appeal, the issue of whether one could maintain a separate cause of action based upon spoliation in Mississippi had to be addressed.The first case to speak to this issue was Dowdle Butane Gas Co., Inc. v. Moore .In a lengthy discussion of the history of spoliation, the Supreme Court of Mississippi held,
While the law must adjust to meet societys changing needs, we must balance that adjustment against boundless claims in an already crowded judicial system.We are especially adverse to creating a tort that would only lead to duplicative litigation, encouraging inefficient re-litigation of issues better handled within the context of the core cause of action.We thus decline to recognize evidence spoliation as an independent tort.Furthermore, weighing against recognition of the tort is the uncertainty of the fact of harm.As the Arkansas Supreme Court stated in Goff v. Harold Ives Trucking Co. , the question goes not only to the amount of damages caused by the destruction of evidence, but also to the very existence of injury.And, finally, the costs to defendants and courts would be enormous, particularly from the risks of erroneous determinations of liability due to the uncertainty of the harm and from the extraordinary measures required to preserve for indefinite periods items for the purpose of avoiding potential spoliation liability in future litigation.Non-tort remedies for spoliation are sufficient in the vast majority of cases, and certainly, as the California courts learned after 14 years of experience with this tort, any benefits obtained by recognizing the spoliation tort are outweighed by the burdens imposed.
Here, the Court held that Mississippi would not recognize an independent cause of action in tort for the intentional spoliation of evidence.It was not until June 2003 that Mississippi courts were provided guidance on the issue of negligent spoliation of evidence.
In Richardson v. Sara Lee Corporation , the Supreme Court of Mississippi addressed whether one could maintain an independent claim for negligent spoliation of evidence.It stated,
In Dowdle, decided on December 5, 2002, this Court refused to recognize a separate tort for intentional spoliation of evidence against both first and third party spoliators. Inasmuch as we were requested in Dowdle to consider only a claim for intentional spoliation of evidence, the question of whether we will recognize a separate cause of action for negligent spoliation of evidence we leave for another day.Today, we are confronted with that question.In writing for the Court in Dowdle, Presiding Justice Smith provided an overview of this theorys origin in California and how different jurisdictions have dealt with both intentional and negligent spoliation of evidence.The reasoning of this Court (and that of other jurisdictions) in refusing to recognize a separate tort of intentional spoliation included infringement on the rights of property owners, endless litigation, and uncertainty of the fact of harm...The Dowdle reasoning in refusing to recognize an independent cause of action for intentional spoliation of evidence gains even more force when applied to the issue of whether to recognize an independent cause of action for negligent spoliation of evidence.Accordingly, we decline Richardsons invitation to recognize this independent tort.
After these two opinions, it is evident that an independent cause of action for intentional and/or negligent spoliation of evidence is unavailable in Mississippi courts.
Matthew L. Devereaux, Esq.
Montague, Pittman & Varnado, P.A.
525 Main Street
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Hattiesburg, MS 39403-1975
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