Lost Evidence Cause Rebuttable Presumption In Favor of Plaintiff
Once a plaintiff has established that the third party had knowledge of the underlying action or potential action, that the third party assumed control over the evidence, and that the lost or destroyed evidence was "vital" to his claim in the underlying action or potential action, a rebuttable presumption arises in favor of the plaintiff.
Our treatment here of the effect of spoliation is similar to the rationale set forth in a dissenting opinion in a case involving alleged spoliation by an adverse party in an action presenting a tort claim other than the spoliation, Alabama Power Co. v. Murray, 413 So. 2d 1109, (Ala. 1999) (Lyons, J., dissenting):
"'Destruction of potentially relevant evidence obviously occurs along a continuum of fault -- ranging from innocence through the degrees of negligence to intentionality.
' ... a burden-shifting instruction in the case of a merely negligent loss would not require the innocent party to suffer the consequences resulting from the fact that his or her burden of proof has been made greater by the negligence of the adversary, and, at the same time, it would not impose an excessively harsh sanction upon a merely negligent party."
This burden-shift derives from the rationale set forth by the United States Court of Appeals for the Sixth Circuit in Welsh v. United States, 844 F.2d 1239, 1248 (6th Cir. 1988).
Although the burden-shift adopted by the court in Welsh involved spoliation by a party to the original tort rather than by a third party, its reasoning remains sound in this context:
"Creating this rebuttable presumption occupies a middle ground -- it neither simply condones the defendant's negligent spoliation of evidence at the plaintiff's expense nor imposes an unduly harsh and absolute liability upon a merely negligent party. Instead, this approach merely selects which of two parties -- the innocent or the negligent -- will bear the onus of proving a fact whose existence or nonexistence was placed in greater doubt by the negligent party." Id. at 1249).