Practice Tip: A Non-Party Spoliates Key Evidence

At the outset of a medical device product liability case, the device in question may not be in possession of either party. For example, the device may be with a medical examiner, or it could be maintained by a non-party medical facility or medical provider. If the device is somehow damaged, or, worse, lost altogether, the issue of spoliation of evidence could be raised. Many product liability litigators have experience in dealing with first-party spoliation or assertions of spoliation, either when their own clients are alleged to have spoliated evidence, or when the opposing party purportedly has done so. Traditional remedies for first-party spoliation include expenses (including attorneys' fees), adverse inference charges, and, in the extreme, default judgment. On the other hand, when a non-party spoliates evidence, which is referred to as third-party spoliation, traditional remedies may not necessarily be applicable. And yet, third-party spoliation can have just as large an effect on discovery in the underlying lawsuit.