This requirement] is even more necessary where the destruction was merely negligent, since in those cases it cannot be inferred from the conduct of the spoliator
that the evidence would even have been harmful to him.
153) The spoliation doctrine operates as a rebuttable rule, requiring the spoliator
to provide a reasonable explanation for the loss and nature of the evidence.
Sanctions can range from the award of fees and expenses to the adverse party, to exclusion of arguments or evidence, to adverse jury instructions, to outright dismissal of the suit or entry of default judgment against the spoliator
46) The choice of remedy is often determined by the culpability of the spoliator
--the more culpable the spoliator
, the harsher the penalty.
The most popular test requires that the spoliator
(1) have a duty to preserve, (2) have a culpable state of mind, and (3) that the destroyed evidence was relevant to the opponent's claims or defenses.
Notwithstanding the apparent broad application that an independent cause of action would encompass, the Court opined that where the Plaintiff can establish that the spoliator
had a legal or contractual duty to refrain from spoliation, tort liability can arise.
The duty to preserve evidence flouted by the spoliator
can arise from a court order, a discovery request, a statute or administrative regulation, a contract, and perhaps common law.