The present appeal requires us to determine
1. Facts and procedural background.
The parents of the children injured and killed in the blaze brought suit against Littleton, alleging that he had failed to maintain the dwelling in a safe and habitable condition.
In that underlying tort action, the parents filed a motion for sanctions, alleging that Splaine's removal of the electrical components from the scene had so altered them as to compromise the parents' ability to prove their claims. They requested
Meanwhile, the parents had filed the present action against Dorchester Mutual and Splaine, alleging counts of negligence, "negligent spoilation of evidence," and "intentional spoilation of evidence" against each of them. As against Dorchester Mutual, the parents also alleged a violation of G. L. c. 93A and G. L. c. 176D stemming from the same "spoilation of evidence." In support of their negligence claim, the parents alleged that Dorchester Mutual and Splaine were negligent in their "failure to properly preserve and maintain the condition of the subject premises and its components, including the subject electrical circuit and its appurtenant parts when [they] knew or should have known that the condition of said circuit and its appurtenant parts constituted an element vital to the establishment and proof of the cause and origin of the subject fire," and that they had suffered "irreparable harm" as a result. In separate counts for "negligent spoilation of evidence," the plaintiffs alleged that the defendants "knew, or should have known, that said [electrical] circuit was a relevant piece of causative evidence to potential liability claims" and therefore "owed to the Plaintiffs a duty of care to preserve the fire scene and the subject electrical circuit for prospective civil litigation." The removal of the electrical circuit was allegedly a breach of that duty. Finally, in their counts for "intentional spoilation of evidence," the plaintiffs alleged that the defendants breached that same "duty of care to preserve the property" by removing the electrical circuit "with the purpose of harming the Plaintiffs' prospective actions against [the owner] and others" when they "knew or
Dorchester Mutual filed a motion to dismiss for failure to state a claim, arguing that Massachusetts does not recognize an action in tort for "spoliation of evidence." The judge agreed, noting that the remedy for spoliation of evidence, if any occurred, would be the imposition of appropriate sanctions in the underlying tort action. See Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 126-128 (1998); Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197-198 (1989). Thereafter, Splaine filed his own motion to dismiss, which was allowed on the same ground.
2. Discussion. To date, we have not recognized a cause of action for spoliation of evidence. Most jurisdictions that have considered the issue have declined to recognize such a cause of action.
Persons who are not themselves parties to litigation do not have a duty to preserve evidence for use by others. Nonparty witnesses may have evidence relevant to a case — documents, photographs, tape recordings, equipment parts, or any other tangible objects — and may know of its relevance, but that knowledge, by itself, does not give rise to a duty to cooperate with litigants. Automatic imposition of such a duty on all witnesses would interfere with a witness's own property rights. A nonparty witness is not required to preserve and store an item merely because that item may be of use to others in pending or anticipated litigation.
While a duty to preserve evidence does not arise automatically from a nonparty's mere knowledge, there are ways that that duty may be imposed on a nonparty. Witnesses may be required to produce particular items by way of a subpoena
A third-party witness may also agree to preserve an item of evidence and thereby enter into an enforceable contract. See Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 208, 215 (1987) (declining to recognize cause of action for spoliation, but recognizing that duty to preserve evidence may be imposed "by reason of an agreement, contract, statute, or other special circumstance"). Remedies for breach of such an agreement are found in contract law, not in tort law. Again, where the source of a nonparty's duty to preserve evidence is one that already states a cause of action and provides its own remedies, we will not invent a separate, duplicate cause of action in tort.
We have implicitly recognized that persons who are actually involved in litigation (or know that they will likely be involved)
Again, however, in recognizing such a duty, we simultaneously crafted the remedy for spoliation within the context of the underlying civil action. Sanctions in that action are addressed to the precise unfairness that would otherwise result. Thus, for example, an expert's testimony (or portions thereof) may be excluded so that the expert would not have the unfair advantage of posing as "the only expert with first-hand knowledge" of the item. Nally v. Volkswagen of Am., Inc., supra at 198. Such a sanction "should go no further than to preclude tainted testimony." Id. at 199. The imposition of such a remedy must also take into account the party responsible for the spoliation. See Kippenhan v. Chaulk Servs., Inc., supra at 128 (defendant's spoliation of evidence did not preclude plaintiff's expert from testifying against codefendant). Not only do we impose the sanction of excluding testimony, but we do so recognizing that such exclusion of testimony may be dispositive of the ultimate merits of the case, thereby imposing the ultimate sanction on the party responsible for the spoliation. See Nally v. Volkswagen of Am., Inc., supra at 195, 199 (summary judgment
Thus, consistent with the specific facts and circumstances of the underlying case, sanctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation. A party's claim of prejudice stemming from spoliation is addressed within the context of the action that was allegedly affected by that spoliation. And, if the party claiming prejudice is of the view that the judge erred in refusing to impose sanctions, or in not ordering sufficiently extensive sanctions, that issue may be raised on appeal. As such, the remedies to which a victim of spoliation is entitled will be conclusively determined in the underlying action.
Finally, along with other jurisdictions, we are persuaded that allowing a separate cause of action for spoliation would recognize a claim that, by definition, could not be proved without resort to multiple levels of speculation. See, e.g., Goff v. Harold Ives Trucking Co., 342 Ark. 143, 149 (2000); Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 17-18 (1998). A plaintiff pursuing a spoliation action would have to prove that the breach of the duty to preserve evidence caused damage to the plaintiff's position in the underlying case, and would have to prove the amount of those damages. To establish causation and damages, the plaintiff would have to show that the jury in the underlying action would have found differently if the original, unaltered item of evidence had been before them. Such a showing requires proof of the very thing that can no longer be proved: the precise nature of the original item. If the contents or salient characteristics of the original item can still be shown, then they can be shown in the underlying action and there is no damage from any "spoliation." If they cannot be shown, then the jury in the spoliation action could only surmise whether the item in its original state would in fact have been favorable to the party now claiming to have suffered a loss on account of
The experience of the California courts is instructive in this regard. It was a California intermediate appeals court that first recognized a cause of action for spoliation of evidence in 1984. See Smith v. Superior Court, 151 Cal.App.3d 491, 502 (1984). Overruling that decision fourteen years later, California's highest court determined that the speculative nature of a cause of action for spoliation would make such a claim virtually impossible to prove:
Cedars-Sinai Med. Ctr. v. Superior Court, supra at 13-14. We agree that it is inappropriate to "open up the decision on the merits of the underlying causes of action to speculative reconsideration regarding how the presence of the spoliated evidence might have changed the outcome." Id. at 17.
Accordingly, we affirm the dismissal of plaintiffs' claims for spoliation, and leave the plaintiffs to pursue their remedies for the alleged spoliation in the underlying tort actions.
Other jurisdictions have declined to reach the question because the facts of the cases before them would fail to make out a spoliation claim, even if such a cause of action were to be recognized. See Murray v. Farmers Ins. Co., 118 Idaho 224, 230 (1990); Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 439 (Minn. 1990); Baugher v. Gates Rubber Co., 863 S.W.2d 905, 910 (Mo. Ct. App. 1993). Some courts have refused to impose a general duty to preserve evidence, but have found that the facts as pleaded fit within a narrower cause of action already acknowledged within the jurisdiction. See Smith v. Atkinson, 771 So.2d 429, 433 (Ala. 2000) (assumption of duty); La Raia v. Superior Court, 150 Ariz. 118, 121 (1986) (duty to mitigate harm of underlying tort); Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 194-195 (1995) (assumption of duty); Rosenblit v. Zimmerman, 166 N.J. 391, 405-406 (2001) (fraudulent concealment); Weigl v. Quincy Specialties Co., 158 Misc.2d 753, 757 (N.Y. Sup. Ct. 1993) (unlawful interference with employee's right to pursue workers' compensation claim). See also Thompson v. Owensby, 704 N.E.2d 134, 138 (Ind. Ct. App. 1998) (negligent spoliation claim recognized where facts gave rise to special duty).
Only a handful of jurisdictions has expressly recognized a cause of action for spoliation of evidence. See Hazen v. Anchorage, 718 P.2d 456, 463 (Alaska 1986); Bondu v. Gurvich, 473 So.2d 1307, 1312 (Fla. Dist. Ct. App. 1984); Oliver v. Stimson Lumber Co., 297 Mont. 336, 348-352 (1999); Torres v. El Paso Elec. Co., 127 N.M. 729, 745 (1999); Smith v. Howard Johnson Co., 67 Ohio St.3d 28, 29 (1993). But see Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 304 (Alaska 2000) (narrowing scope of permissible spoliation claims); White v. Ford Motor Co., 142 Ohio App.3d 384, 388 (2001) (same).