There Is No General Duty to Preserve Evidence
Although there is no general duty to preserve evidence, "Alabama clearly recognizes the doctrine that one who volunteers to act, though under no duty to do so, is thereafter charged with the duty of acting with due care and is liable for negligence in connection therewith." Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala. 1979).
When a third party has knowledge of a pending or potential lawsuit and accepts responsibility for evidence that would be used in that lawsuit, it should be held liable for damage resulting from the loss or destruction of that evidence.
A California District Court of Appeal has clarified the duty element of California's tort of negligent spoliation, in Johnson v. United Services Automobile Association, 67 Cal. App. 4th 626, 79 Cal. Rptr. 2d 234 (Dist. Ct. App. 1998), and, although we decline to adopt California's negligent-spoliation tort in its entirety, we are persuaded by that court's rationale for the method by which the plaintiff in a negligent-spoliation case is to establish the existence of a duty on the part of the defendant.
In addition to the voluntary assumption of a duty, mentioned above, the Johnson court recognized two additional ways a duty could be imposed upon a third party:
"A duty in a third-party negligent spoliation case can be created by the spoliator voluntarily undertaking to preserve the evidence and a plaintiff reasonably and detrimentally relying thereon ...; by an agreement to preserve between the spoliator and the plaintiff ...; or by a specific request to the spoliator to preserve a particular item ...." 67 Cal. App. 4th at 635, 79 Cal. Rptr. 2d at 239.
We also agree with Johnson that a third party's constructive notice of a pending or potential action is not sufficient to force upon the third party the duty to preserve evidence. Id., 67 Cal. App. 4th at 635, 79 Cal. Rptr. 2d at 240.
"Limiting the usual duty in third-party negligent spoliation to an agreement to preserve, or a voluntary undertaking with reasonable and detrimental reliance, or a specific request, ensures that such a spoliator has acted wrongfully in a specifically identified way." Id., 67 Cal. App. 4th at 637, 79 Cal. Rptr. 2d at 241.