Spoliation of Evidence: An Evidentiary Dilemma and the Court’s Response

I. Introduction

Imagine filing a products liability suit against a manufacturer for the defective manufacture of a product that has resulted in the plaintiff’s injury.  The very basis in filing an action for defective manufacture is the product itself, and because the defective product is the foundation of the plaintiff’s case, without that particular product that caused the injury, it is unlikely that the plaintiff will prevail.  Discovery commences and the defendant requests to inspect the product with their own expert in order to develop their defense.  Defendant obtains the product but fails to return it to the plaintiff.  The defendant claims that the product was either ‘accidentally’ destroyed or that they or a third party misplaced the product.  It is no longer available.  What is the plaintiff to do?  How are they to proceed with their case when the defective product has been destroyed?  The plaintiff and its attorney must now devise a strategy to prove that the product was the cause of plaintiff’s injury based most likely on circumstantial evidence because the product is no longer available.  The key problem that the plaintiff faces in Illinois is that no general duty exists to preserve evidence.  Even in instances where the non-offending party can explain to the court that the offending party was in fact responsible for the destruction of the evidence either by intent, negligence, or an inadvertent action, the court hesitates to impose sanctions on the offending party.1

Anyone can destroy evidence; it may be a plaintiff, defendant, or a third party.  Regardless of who destroys it, the party that requires the product no longer has use of it at trial.  The non-offending party that requires the destroyed evidence in order to successfully present its case is now placed in a position where they have to file a separate action against the offending party for spoliation of evidence.  However, in order to successfully plead a spoliation claim against the offending party, the non-offending party must file a negligence action and prove that the offending party had a duty to preserve the evidence for trial.

This is the essential problem.  Few spoliation of evidence cases are filed in Illinois.  The reason for the lack of filing spoliation claims may be connected to the Illinois Supreme Court’s long-held position that there is no general duty imposed on a party to preserve evidence. Sanctions, however, may be obtained.  Illinois Supreme Court Rule 219 provides for discovery sanctions including contempt proceedings; the entering a default judgment for the aggrieved party; assessing monetary penalties; barring the offender from maintaining any claim or defense relating to the issue of the case; or employ an adverse jury instruction thereby, creating an adverse presumption against the spoliator (offending party).  However, the language contained in the Rule provides no specific language regarding spoliation. 

A discovery sanction does not remedy the fact that the offending party’s destruction or loss of evidence before trial inhibited the non-offending party’s ability to present their case with the requisite evidence.  The imposition of a sanction may not change the fact that the non-offending party is now placed in a position where they are most likely required to try their case on circumstantial evidence, and incur the risk of failing to prevail or abandon the case.  While Illinois does recognize spoliation as both a tort and a potential discovery sanction; there is no guidance in Rule 219 that specifically addresses spoliation.   

This is the dilemma.  There is no clear guidance for the Illinois Courts to assess damages to the non-offending party because in order to plead spoliation claim, the non-offending party must have some form of damages; namely, losing their case as a result of the destroyed evidence.  However, the current state of the law provides no latitude to the non-offending party in lieu of the fact that they lack the evidence to put forth their case as a result of the offending party’s conduct.  The Illinois Supreme Court placed the burden on the non-offending party to both proceed with their case with circumstantial evidence; and then require that they file a subsequent action against the offending party for spoliation alleging that they (the non-offending party) would have prevailed but for the offending party’s conduct.  

In order to fully address spoliation and the issues that it raises; this comment will begin with a discussion of the seminal case regarding the destruction of evidence, Boyd v. Travelers Insurance Co. 166 Ill.2d 188 (1995) in order to establish the framework and the reasoning for the Court’s current position.  Next, two arguments will be advanced, first, that in imposing an additional burden on the non-offending party, the Boyd Court committed both an evidentiary and logical error.  Following this analysis, the focus will shift with a discussion of a recent case, Martin v. Keeley & Sons Inc., 2011 Il. App. (5th) 100117 that heavily relies on Boyd and was recently ruled on by the Illinois Supreme Court, see Martin v. Keeley & Sons, 2012 IL 113270.  The second argument is the current state of the law has resulted in few courts investigating claims of spoliation or taking action against offending parties through the use of Rule 219 (c) sanctions that could be imposed as a means of reducing the future occurrence of spoliation. 

II. Background

Spoliation is the destruction, significant alteration or nonpreservation of evidence that is relevant to pending or future litigation. (10 ILPRAC § 25:1).  Spoliation “can occur as the result of actions by parties or by nonparties. It can be inadvertent or intentional. It can be the product of absolute good faith, the result of negligence, or the exercise of consummate evil.” (10 IL PRAC § 23:32).  Regardless of who destroys or conceals evidence, spoliation interferes with the proper administration of justice by giving one party an unfair advantage over an adversary. In the most egregious instances, spoliation amounts to a form of cheating that blatantly compromises the goal of a trial as a search for truth and expropriates an injured party’s legal remedy. Id.  The seminal case on spoliation of evidence is Boyd v. Travelers Insurance Co. 166 Ill. 2d 188 (1995) where the Illinois Supreme Court developed the foundation of the current position on spoliation of evidence when it held that, “the general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, statute, or another special circumstance.  Moreover, a defendant may voluntarily assume a duty by affirmative conduct.” Boyd, 166 Ill. 2d 188, 195 (1995).  The Court went on to say that “In any of the foregoing instances, a defendant owes a duty of care to preserve evidence, if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Id. at 196. 

The Supreme Court explained that even if the plaintiff could successfully plead that the defendant had a duty to preserve the evidence that was destroyed, the plaintiff would have to further establish that but for the loss of this evidence, they (the plaintiff) would have likely prevailed in the underlying action. In Boyd, the space heater that caused the plaintiff’s injury was given to the defendants for inspection and testing, at some point while it was in the defendant’s possession the heater was lost.  The Court agreed with the defendants’ argument that until the plaintiffs lose the underlying action, they have suffered no actual injury, which is necessary for any cause of action, and thus, until the plaintiff lost the worker’s compensation claim, because the Court found that he had not suffered an injury. Id. at 193.  In other words, in order for the plaintiff to successfully plead a spoliation of evidence claim, they must first lose the underlying action against the defendant in the first place, and then when the plaintiff files the subsequent spoliation action, they would argue that but for the loss of the evidence that there was a reasonable probability of success in the underlying action against the defendant in the first place.2

The Court’s ruling, is problematic for two reasons.  First, by requiring a non-offending party to put on their case without the necessary evidence that would have substantiated the offending party’s liability, the court has shifted the burden on the non-offending party to not only have to prove their case with circumstantial evidence but that they in essence lose their case in chief, in order to successfully allege a spoliation of evidence claim.  Second, the Court has taken no stand in admonishing or assessing judgments against offending parties when the chain of possession of the evidence clearly ended with the offending party and that party’s behavior caused the loss or destruction.

III. Analysis

  1. A.  The Illinois Supreme Court was incorrect in Boyd by placing the burden on the non-offending party to prove that a duty to preserve evidence exists.

The Supreme Court’s decision in Boyd is incorrect.  If the non-offending party seeks to file a spoliation claim against the offending party, the non-offending party has the burden of proving that the offending party breached its duty to preserve the evidence and that but for the loss of this evidence, the non-offending party would have prevailed in the underlying action.  The Court denied placing any burdens on Travelers (defendant) to preserve the space heater, particularly when the issue was whether the space heater caused the plaintiff’s injuries as a result of a manufacturing defect.  What is unsettling from the Court’s reasoning is that in affirming the dismissal of the plaintiff’s spoliation claim; is that not only did the defendant not test the heater, but the Court did not address the fact that the issue of the proper functionality of the space heater was basis of the Plaintiff’s worker’s compensation claim (case in chief).  The absence of the heater precluded him from being able to move forward or even attempt to prove his claim.    

The key problem with the Court’s ruling in Boyd is rooted in both evidence and logic.  The evidentiary problem arises because the Court has added another burden to the non-offending party, who must try their case with circumstantial evidence, run the greater risk of losing at trial, and then allege a spoliation claim.  Circumstantial evidence is offered for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted.  Such evidence is indirect proof of the principal facts in a case, which principal facts can only be inferred from one or more circumstances directly established. McCormick on Evidence, Second Edition, Title 7, Ch. 16, Sect. 185.  Circumstantial evidence is merely indirect proof and used only to further an inference of truth from the facts.  The problem with using circumstantial evidence in a products liability or worker’s compensation action is that the non-offending party who requires the actual evidence that was spoliated is now required to present a series of inferences to the court in order to prevail with their claim.   

Under Illinois law, to recover in a products liability action, a plaintiff must plead and prove that the injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time the product left the manufacturer’s control. Kelso v. Bayer Corp. 398 F.3d 640 (7th Cir. 2005).  Where the allegation is negligent manufacturing; how is the non-offending party to prove that their injury resulted from a condition of the product when the product no longer exists as result of the destruction of the evidence? The plaintiff has no reasonable expectation of meeting this burden if the necessary evidence no longer exists and they cannot prove that the product was defective in the first place.  This is precisely why the Court’s reasoning is incorrect from an evidentiary standpoint; there is no feasible manner in which the non-offending party can put on their case because they cannot meet the burden that the product is (was) defective because the product no longer exists.

From an evidentiary position, the additional burden that Boyd places on plaintiffs who file a spoliation claim is counter-intuitive because the plaintiff will not be able to satisfy the burden of their underlying cause of action.  The Court’s holding on spoliation read as follows, “A plaintiff must demonstrate, however, that but for the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying suit.” Boyd at 197.  The plaintiff’s success in pleading that they would have prevailed is counteracted by the burden of proof for a products liability claim for negligent manufacture.  Particularly, in instances in which the evidence is destroyed prior to the non-offending party’s ability to conduct necessary tests and inspection, the non-offending party would have no way of demonstrating that they had a reasonable probability of success in the underlying matter; and as a result, the non-offending party would lose the spoliation claim because they would not be able to successfully plead damages.  There would be no evidence through which the non-offending party could make the slightest offer of proof in the spoliation claim because there is no evidentiary basis through which the non-offending party could prove that they would have prevailed had the offending party not caused the destruction of the evidence.  The requirements that the Boyd Court set forth in pleading the subsequent spoliation claim are inconsistent with the evidentiary standard of the underlying action; which begs the question, how can the non-offending party to expect to prevail when the evidentiary standards are inconsistent?  Unfortunately, the Boyd Court did not provide an answer; which is precisely the first half of the problem; how is the plaintiff (their lawyers) to proceed without the necessary evidence to prove their case?

The second half of the problem is rooted in logic.  Consider the following from Boyd, “a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Boyd at 196.  The confusion that arises from the Court’s decision is that they acknowledge that a duty arises when it a reasonable party should have foreseen that the evidence would be necessary but at the same time, the Court said that no general duty to preserve evidence exists.  The duty to preserve documents or tangible evidence in a given instance can arise from the existence of pending, threatened, or reasonably foreseeable litigation. ABA-SPEVD CH. 1(2006). 

Boyd articulated a two prong test for determining when there is a duty to preserve evidence; the relationship prong and the foreseeability prong. Dardeen v. Kuehling, 213 Ill. 2d 329, 336 (2004).  In order to satisfy the relationship prong of the test, a party must establish that a duty to preserve evidence arose “by agreement, contract, statute, special circumstance, or voluntary undertaking. Id.  If the duty to preserve evidence is found, then the foreseeability prong of the test is used to determine “whether that duty extends to the evidence at issue—i.e. whether a reasonable person should have foreseen that the evidence was material to a potential civil action.” Id.  Unless both prongs of the test are satisfied, “there is no duty to preserve the evidence at issue.” Id.

The language and subsequently, the application of the test is precisely where Boyd, and the cases that have followed Boyd have gone astray by creating a pleading problem for the moving party.  The test shifts the presumption of proving the spoliation claim in favor of the offending party because the non-offending party must establish the existence of a duty, which is consistent with pleading standard of a negligence claim.  The moving party must prove that a duty existed and that the non-moving party breached the duty.  The test becomes increasingly problematic because of the foreseeability prong, as it conflicts with the first prong of the test.  The Court in Boyd stated, “a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Boyd at 196.3  The Court’s opinion travels in two different directions; on one hand, they require that the non-offending party plead that a duty exists by shifting the presumption on the non-offending party to demonstrate that but for the destruction or loss of the necessary evidence that the non-offending party would have prevailed in the underlying action.  However, on the other hand, the Court is saying that foreseeability of a civil action is sufficient to establish the duty on the parties to preserve evidence; which would lead one to believe that in satisfying the foreseeability prong that the existence of duty (first prong) would be established by default.   

In Boyd, the Defendant was on notice as to the importance of the evidence, as the basis of the Plaintiff’s claim for his injury was the alleged defect of the product.  Defendant retrieved the product from Plaintiff and indicated that it would be returned after it was tested and inspected; however, while in the possession of the Defendant it disappeared and was never tested.  Pursuant to the Court’s language, it was foreseeable that the evidence was necessary for trial (being the basis of the Plaintiff’s claim) and such foreseeability gave rise to a duty on behalf of the Defendant to preserve such evidence.  To ensure that relevant evidence is not destroyed or discarded during the pendency of a lawsuit, a party, of course, must determine what evidence is relevant.  Lewy v. Remington Arms Co. 836 F.2d 1104 (8th Cir. 1988).  The potential relevance of evidence can be ascertained from the complaint, discovery requests, or a court order. Id. If no lawsuit has been filed, a potential defendant may be put on notice by a demand letter from counsel for plaintiff, or it may have notice through a pattern of complaints received in the past regarding the particular product. Id. 

The foreseeability test is satisfied through multiple sources, as the court notes in Lewy.  The Court stresses foreseeability as a requisite element of the two part test; acknowledges that it was foreseeable that the evidence was material to the Plaintiff’s case but then concluded that the loss of the evidence by the Defendant did not deprive him of his suit against the manufacturer.  The premises of the argument do not result in the conclusion.   As the law currently stands, it is evident as to why spoliation claims are unable to gain any traction in the trial courts, the underlying presumption, as well as the evidentiary foundations make it impossible for the non-offending party to overcome the burdens that Boyd places on them.   

Boyd remains the seminal case on spoliation and the Court’s reasoning is the current subject of dispute in Martin v. Keeley & Sons, Inc., 2011 IL App. (5th) 100117.  In Keeley, Plaintiffs (a three man crew who were all employees of the Defendant) were working on a bridge that the Defendant (Keeley) was contracted to repair by the Illinois Department of Transportation (IDOT).  Plaintiffs were injured when they fell from scaffolding that was supported by a concrete I-beam that collapsed and fell into a creek directly below the bridge.  The following day, after the accident was investigated by IDOT and Occupational Safety and Health Administration (OSHA) Keeley broke the beam into pieces to retrieve the steel plates from the beam in order to have a replacement beam manufactured in less time and recommence work on the bridge.  Keeley destroyed the I-beam following IDOT’s and OSHA’s final inspections of the beam and Keeley employees inspected the I-beam before it was destroyed.  Plaintiffs filed a multi-count complaint against Keeley, alleging that Egyptian (the manufacturer of the beam) negligently manufactured the I-beam and that Keeley had breached its duty to preserve the beam before destroying it.  The trial court dismissed the Plaintiffs’ case on Keeley’s motion for summary judgment, finding that there was no issue of material fact as to whether a reasonable person should have foreseen that the I-beam was material to a potential civil action based on the incident.  

However, the Appellate looked to the two part test from Boyd, 1) whether a duty to preserve the evidence existed and 2) whether it was foreseeable that such evidence would be necessary at trail.  The Court determined that because Keeley preserved the beam for inspection by OSHA, IDOT, and its own employees, that these actions constituted a voluntary undertaking to preserve the evidence, as defined in Boyd, and that such an undertaking established a duty on Keeley to preserve the I-beam for the benefit of other potential litigants. 

As to the second prong of the test, Eugene Keeley (the president of the construction company) had authorized the destruction of the I-beam because IDOT allegedly wanted it moved.  None of the work-site inspections indicated that the I-beam had contributed to the accident and the manufacturing company of the I-beam (Egyptian Concrete) expressed no concerns that the beam might have been a contributing cause.  In accordance with these facts alone, it was reasonable for Keeley to conclude that the beam would not be material in a potential civil action.  However, the duty to preserve evidence “remains as long as the defendant should reasonably foresee that further evidence material to potential civil action could be derived from the physical evidence.  Anderson v. Mack Trucks Inc. 341 Ill. App. 3d 212, 218 (2003).  Particularly in this case, the I-beam was supporting the scaffolding from which the plaintiffs fell, and the Court found that Keeley knew that at the very least, workers’ compensation claims would stem from the accident.  Additionally, while Keeley was conducting the work-site inspection, he (Eugene Keeley) took a large quantity of pictures, thereby demonstrating awareness that it was important to document the scene.  The Court found that Keeley’s taking pictures, in conjunction with the plaintiffs hearing a “popping” sound immediately before the beam collapsed and the acknowledgement by the manufacturer that a weakened concrete beam can “explode” under stress supported the necessity to preserve the beam for trial.  And thus, the Court found that the second prong of the test was satisfied and reversed the trial court’s order dismissing the case on summary judgment. 

The Appellate Court’s decision in Keeley represents a move in the right direction by shifting the presumption from the non-offending party to prove a spoliation claim and focuses on the acts of the offending party.  The focus of the decision in Keeley relied heavily on the language of Boyd when the Supreme Court wrote, “a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant’s position should have foreseen that he evidence was material to a potential civil action.” Boyd, at 196.  The main difference between Keeley and Boyd is that the Appellate Court in Keeley applied the facts in a manner that reflected the language from BoydKeeley represents an application of the Boyd test in a manner that is consistent both from an evidentiary and logical perspective. 

The Keeley Court recognized the evidentiary problem, namely, that the plaintiffs would be unable to prevail on their worker’s compensation claim without the cause (the I-beam) of their injury.  The Keeley Court looked to the actions of the offending party and determined that the owner of the company voluntarily undertook a duty to preserve the evidence by preserving the evidence to be inspected.  The interesting fact between the two decisions is that the defendant in Boyd, took the space heater for a similar purpose, but the court found that no duty to preserve the evidence existed, despite the fact that the defendant in Boyd never tested the heater during the year in which the heater was in the defendant’s possession. 

The Keeley Court’s shift in focus from what the non-offending party must prove to what the offending party has done; alleviates much of the additional burdens that the Boyd Court imposed on the non-offending party.  This is not to suggest that the non-offending party should prevail in their spoliation claim with minimal effort or that the non-offending party does not have burdens of proof.  However, the presumption should not be in favor of the offending party.  The actions of the offending party must be scrutinized closely by the courts to determine the role that such actions had in causing spoliation of the evidence.  Shifting the burden from the non-offending party to the offending party, prevents the logical contradiction within the two part test.  The Keeley Court recognized the contradiction and avoided it, simply by following the rule established in Boyd.  The difference in the results of these two cases is reflected in the Keeley Court’s strict adherence to the language of the rule and the application of the two prong test.

While Keeley has shed new light on spoliation and provided both a better evidentiary and logical application of the rule; the defendants appealed, and the case was accepted by the Illinois Supreme Court.  The outcome of the Court’s decision determined whether the long-held complications and misapplied presumptions that the Boyd created would be abolished and re-established in a manner that is consistent with the rule. 

The Illinois Supreme Court issued its decision on Keeley in October of 2012 and found that no duty existed to preserve the I-beam.  The Court examined the two-part test set forth in Boyd, and determined that under the ‘relationship’ prong (first prong as discussed above) of the test, the plaintiff must show that an agreement, contract, statute, special circumstance, or voluntary undertaking has given rise to a duty to preserve evidence on the part of the defendant. Martin et. al.v. Keeley & Sons Inc. 2012 IL 113270 at ¶ 27.  The Court found that there were no allegations that an agreement, or statute required Keeley to preserve the I-beam as evidence.  Id.  The Court stated that “a ‘voluntary undertaking’ requires conduct by the defendant evincing defendant’s intent to voluntarily assume a duty to preserve evidence.” Keeley at ¶ 31, citing Boyd at 195.  The Court went on to say that there was no evidence in the record that Eugene Keeley voluntarily undertook to preserve the I-beam for the purpose of potential future litigation.  The Court especially noted since Keeley never performed any testing of the beam or moved the beam from the place where it fell, plaintiffs must demonstrate affirmative conduct by Keeley showing its intent to voluntarily undertake a duty to the plaintiffs.  Id at ¶ 31. 

The Court further distinguished Keeley from Boyd by noting that the two relevant factors from Boyd were 1) that the insurer’s employee’s removed the heater from the plaintiff’s home, took it into their possession for the purpose of investigating the workers’ compensation claim and 2) they knew that the heater was evidence relevant to future litigation.  However, the Court found that the facts in Keeley fell short of the same threshold in Boyd and further addressed the fact that Eugene Keeley did not manifest an intention to preserve the I-beam as evidence or even acknowledge the significance of the I-beam as evidence in potential future litigation.  Keeley never moved the I-beam from its position in the creek where it fell, nor did it relocate the beam to a place where it would be protected from loss or destruction. 

The Court further dismissed the plaintiffs’ claim of special circumstances that arose as a result of the accident because Keeley was in possession of and exercised control over the I-beam.  In dismissing the plaintiffs’ contention, the court cited Dardeen, supra, where the court noted that, “no Illinois court has held that the mere opportunity to exercise control over the evidence at issue is sufficient to meet the relationship prong.” Dardeen at 339. 

In its conclusion, the Court found that there was no evidence in the record that any of the actions taken by Keeley gave rise to a voluntary undertaking to preserve the I-beam, and thus, reversed the Appellate Court’s decision.  The Court further stated that because it found that no duty existed, that there was no need to address the second prong of foreseeability.

  1. B.  The Supreme Court’s ruling in Boyd has resulted in the courts seldom hearing claims of spoliation or assessing sanctions against the offending party.

The Court and its progeny since Boyd do not often admonish or assess judgments against offending parties when the chain of possession of the evidence clearly ended with the offending party.  The likely cause of the Court’s infrequency in taking action against the offending party is that it is difficult for the non-offending party to prevail on a spoliation claim in the first place, that some form of punishment to the offending party never became an issue because the non-offending party could not prevail on their spoliation claim.  However, the current shift in the burden and application of the rule in Keeley, provides courts with greater ability to assess penalties on the offending party.  

Supreme Court Rule 219 (c) provides the best guidance as to the proper sanction(s) to administer to the offending party that has caused the spoliation of the evidence.  The three sanctions that are best applied to an offending party who has caused spoliation of evidence are 1) discovery sanctions; 2) adverse instructions; and 3) that any portion of the offending party’s pleadings relating to the issue be stricken.

The problem with discovery sanctions is that Illinois Courts have held that sanctions are to be used by the trial court to accomplish the objectives of discovery and must not be used to simply penalize a party. King v. American Food Equipment Co. 160 Ill. App.3d 898, 913 (1987).  The standard utilized by courts in determining whether a party’s conduct is unreasonable is whether “the conduct of the offending party seems to have been characterized by a deliberate and pronounced disregard for the rule or order not complied with” or whether “the actions of the party show a deliberate, contumacious, or unwarranted disregard of the court’s authority. King, 160 Ill. App.3d at 911.  In Peal v. Lee 403 Ill. App.3d 197 (2010), the Appellate Court applied the standard established in King and affirmed that intentional non-compliance with court orders and subsequent destruction of evidence will result in discovery sanctions against the offending party.  

In Peal, the defendants filed a series of discovery requests to have the electronic information stored on the plaintiff’s computer turned over for inspection.  The plaintiff failed to comply with the discovery requests.  The plaintiff’s non-compliance endured for approximately eighteen months, at which point a motion to compel was entered by the court.  The motion was granted and the order provided that plaintiff turn over the hard drives of his computer by a specified date.  The examination of plaintiff’s computer revealed that the day before the deadline of compliance with the order, plaintiff had used seven programs to permanently delete data from the hard drive. Peal at 200.  As a result of the plaintiff’s actions, the defendants moved to dismiss the action with prejudice.  The Court affirmed the dismissal of plaintiff’s case and stated that “an order of dismissal with prejudice is a sanction to be invoked only in cases where the non-complying party’s actions show a ‘deliberate, contumacious or unwarranted disregard of the court’s authority. Peal at 204, citing Shimanovsky v. General Motors Corp., 181 Ill.2d 112,123 (1998).

Peal is an excellent example of the Court taking measures against the offending party who fails to comply with Court orders and destroys evidence.  It is rulings such as that in Peal that should occur more often in an effort to prevent the future occurrence of spoliation.  However, the problem that arises for the court is when the offending party has committed spoliation prior to the entry of a court order not to do so.  A court would be hard-pressed to sanction the offending party for a deliberate and pronounced disregard for the rule, when no order prohibiting the party from destroying evidence had been entered.  Sanctions for spoliation have been addressed by Illinois Courts; however because discovery sanctions are meant to coerce compliance with court orders, rather than punish; the imposition of the sanction after spoliation has occurred, seldom has any affect on the offending party because once the evidence is destroyed, such an act cannot be reversed.

The key focus of the courts in imposing sanctions for spoliation is a matter of intent.  The court looks to whether the offending party intentionally caused the destruction or loss of the material evidence.  The setback of Rule 219 is that at the time it was drafted and subsequently modified, it has not taken account for spoliation.  And because prevailing on a spoliation claim was (is) very difficult as a result of the burdens on the non-offending party, sanctions for spoliation were never contemplated within the parameters of Rule 219.  However, the non-offending party can make use of Rule 219 by asking the court for a pre-trial injunction prohibiting the destruction of evidence.  Presuming that the court grants an injunction against a potential offending party prohibiting destruction of any evidence, there is now a court order that requires compliance.  And depending on the circumstances, failure to comply with the injunction could result in sanctions imposed against the offending party.  Strategically, an injunction is currently the best route that the non-offending party has in order to prevent the offending party from destroying material evidence and imposing discovery sanctions.  However, in order for the injunction to result in discovery sanctions, the non-offending party must move for the injunction immediately before the offending party has an opportunity to destroy the evidence.  Timing is of the essence for the non-offending party.  They must be diligent in bringing the potential problem to the Court’s attention to prevent any evidence from being destroyed.   

However, despite the often short-comings of trying to retroactively request discovery sanctions for spoliation; the court can apply adverse instructions against the offending party, in order to prevent future destruction of evidence.  The benefit of an adverse instruction is that it imposes a presumption on the offending party that the reason the evidence is not present is because of the actions of the offending party.  However, while assessing an adverse instruction is a discretionary decision for the trial court, the decision must be based an intentional disregard for the Court’s authority by the offending party.  “It is only where a party’s conduct can be characterized as ‘deliberate, contumacious or unwarranted disregard of the court’s authority’ that the drastic sanctions of dismissal or adverse instructions are justified; and, even, then only ‘as a last resort and after all the court’s other enforcement powers have failed to advance the litigation.” Shimanovsky v. General Motors Corp. 181 Ill.2d 112, 123 (1998).  The administration of sanctions for spoliation is a matter of discretion; however, when the disregard for the court’s authority by the offending party is intentional and the court has exhausted all means of enforcement; then the adverse instruction can prove to be effective. 

In reflecting upon the hypothetical posed at the beginning of this comment, we must ask ourselves where is the line drawn to prohibit parties from destroying evidence?  The dispute in Shimanovsky related to the destruction of a potentially defective steering column from an automobile in a products liability action.  The court noted that underlying the duty (to take reasonable measures to preserve the integrity of relevant and material evidence) is the fare that if a court were unable to sanction a party for the presuit destruction of evidence, a potential litigant could circumvent discovery rules or escape liability simply by destroying the proof prior to the filing of a complaint. Shimanovsky 181 Ill.2d at 121.  Hence, in such a case, a discovery sanction via an order that requires compliance is a moot point because the defective product has already been destroyed.  However, an adverse instruction at the end of the case prior to jury deliberation that tells the jury that the offending party intentionally failed to comply with discovery by destroying the evidence; sends a much stronger message to the offending party and places them in a difficult strategic position.   

An adverse instruction closely mirrors punishment rather than requiring compliance with discovery (which is the purpose of discovery sanctions).  It is not to suggest that the non-offending party should not seek adverse instructions. However, in seeking an adverse instruction, the offending party must have intentionally disregarded the court’s instructions to comply with discovery and the adverse instruction must be a last resort.   

Finally, Rule 219 provides the court with the ability to strike portions of the offending party’s pleadings that relate to the evidence that was spoliated.  The advantage to this sanction is that the offending party is prevented from making any argument in their case that relates to the material evidence that was made intentionally unavailable.  The Illinois Supreme Court has long held that pleadings may be stricken for the violation of a discovery order or rule ‘only when the stricken pleadings bear some reasonable relationship to the information withheld.’ People ex rel. General Motors Corp. v. Bua 37 Ill.2d 180, 197 (1967).  Thus, the non-offending party would have to direct the court’s attention to the sections of the offending party’s pleadings that reference the evidence that was sought by the non-offending party and never produced.  The advantage for the non-offending party is that despite their unsuccessful efforts to have the evidence disclosed; the non-offending party is in essence gaining a significant strategic advantage if the court strikes the offending party’s pleadings because the offending party is now required to make their argument at a severe disadvantage due to their failure to comply with the discovery rule.  However, as with adverse instructions, striking the offending party’s pleadings that reference the spoliated evidence has a stronger appearance of punishment rather than the furtherance of discovery.  The problem with spoliation is that it is not as though a series of sanctions or court orders to produce the evidence will remedy the problem.  Typically, once the evidence is destroyed there is nothing that can be done to bring it back to life.  The best available remedies to the non-offending party are those that punish the offending party for their actions; hence, striking the portions of a pleading that reference the spoliated evidence. 

The attorney for the non-offending party is faced with a difficult decision as to how to proceed with their case, when the offending party has destroyed material evidence.  It is not to suggest that these three sanctions are the only means of retrieving discovery that a party is making (has made) unobtainable, as Rule 219 provides many different options available to the court in an effort to compel discovery.  The selection of a proper sanction is a discretionary issue that will depend on the judge, trial strategy of the lawyer(s); and the facts of the particular case.  The key dilemma that attorneys will face in their quest for potential spoliation sanctions is that spoliation, in most cases cannot be undone.  The evidence cannot be brought back to its pre-existing condition, and thus, furthering discovery, which is underlying tenet of Rule 219 is unobtainable.  And as a result, sanctions for spoliation more often than not closely reflect punishment by the courts because there is nothing that can be done to bring the evidence back to life.  

IV. Conclusion

The question that must now be asked is ‘how does all of this relate to Keeley?’ And the answer is that these are the very issues that the Supreme Court failed to take into account when it ruled on Keeley.  The long standing language of Boyd is indicative of the fact that spoliation needs to be readdressed and clearer guidelines need to be established.  The non-offending party should not have to try their case absent material evidence that was destroyed by the other party and then lose the case and be required to allege spoliation of evidence on appeal.  The Boyd Court shifted the presumption and the burdens in the wrong direction and as a result made litigation even more difficult for the non-offending party.  The days of trial by ambush and deliberate and evasive tactics are seldom accepted by courts in the current arena; and spoliation falls within the category of such tactics.

Keeley had the potential to redraft the language of the tests and alleviate the excessive burdens; thereby, shifting the burdens of proof to the offending party to prove that they did not destroy the material evidence.  However, the Illinois Supreme Court did not address the prevalent issues; rather, it merely addressed the first prong of the test and then reversed the Appellate Court. The Court’s decision reflected an advertence of the issues that the Boyd Test created and unfortunately, we are no closer to a resolution of the dilemmas outlined above.   

1For purposes of this comment, because the party who destroys evidence can be either the plaintiff, defendant, or a third party.  The party who destroys or causes the loss of evidence will hereinafter be referred to as the “offending party” and the party who has suffered as a result of the destruction or loss of evidence will be referred to as the “non-offending party.”
2In Boyd, the Defendant (Traveler’s Insurance Company) was the party whom Boyd alleged caused the loss of the evidence while it was in Travelers’ possession. 
3As noted, for purposes of this comment, it is not always the defendant who is the party committing spoliation; plaintiffs and third parties are equally capable of doing so.