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Destroying Evidence?

By Gabriel Z. Reynoso
June 02, 2014

This may come as a surprise, but neither the California Civil Discovery Act nor any case law interpreting the same specifically prohibits the intentional destruction of evidence prior to a lawsuit being filed ' regardless of whether such litigation is being contemplated or even probable.

There is even authority in California suggesting that even after a lawsuit is filed, a duty to preserve evidence is not triggered until the party is served with discovery demands. For example, in New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1430-1431, the Court of Appeal rejected sanctions for spoliation because it read the California Civil Discovery Act as authorizing sanctions only “[t]o the extent authorized by the chapter governing any particular discovery method or provision of this title,” and no discovery method authorized by the Civil Discovery Act addresses the possibility of spoliation prior to service of a discovery demand.

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