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Coverage for Spoliation Claims
“Insufficient evidence,” Justice Benjamin N. Cardozo famously noted, “is, in the eye of the law, no evidence.” People v. Galbo, 112 N.E. 1041 (N.Y. 1916). Indeed, given that evidence is the very foundation upon which all cases are built, the preservation of evidence, or anything that may potentially become evidence, is of the highest concern in any current or prospective case. To that end, numerous remedies exist to cure or punish ' depending on your point of view ' the loss, alteration, or destruction of evidence, i.e., spoliation of evidence. For example, by far the most common and well-known of these remedies is the spoliation inference; a civil remedy that allows the fact-finder “to presume that the evidence the spoliator destroyed or otherwise concealed would have been unfavorable to him or her.” Rosenblitt v. Zimmerman, 766 A.2d 749 (N.J. 2001); see also Fed. R. Civ. P. 37(b)(2)(A)(i). In fact, the very term “spoliation” is derived from the legal maxim describing the spoliation inference, “omnia praesumuntur contra spoliatorem,” or “all presumptions are against one who wrongfully dispossesses another (a despoiler).” Black's Law Dictionary 1671 (7th Ed. 1999).
Other remedies have also developed over the years. For example, a court may impose sanctions on a party for failure to make disclosures in discovery ' including, in some rare cases, the entry of a default judgment in favor of the non-spoliating party. See, e.g., Keene v. Brigham and Women's Hosp., Inc., 786 N.E.2d 824 (Mass. 2003). In addition, counsel inculpated in spoliation may face ethical or malpractice allegations. See Model Rules of Professional Conduct 3.4 (2009). Moreover, a great many states have gone so far as to make spoliation of evidence a criminal offense, although such laws are rarely enforced. See, e.g., West's Ann. Cal. Penal Code ' 135 (1999) (California: misdemeanor); 720 ILCS 5/31-4 (1998) (Illinois: class 4 felony); McKinney's Penal Law ' 215.40 (1998) (New York: class E felony).
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