Third Party Spoliation of Evidence
As in all negligence actions, the plaintiff in a third-party spoliation case must show a duty to a foreseeable plaintiff, a breach of that duty, proximate causation, and damage. Crowne Invs., Inc. v. Bryant, 638 So. 2d 873, 878 (Ala. 1994).
We announce today a three-part test for determining when a third party can be held liable for negligent spoliation of evidence. In addition to proving a duty, a breach, proximate cause, and damage, the plaintiff in a third-party spoliation case must also show:
(1) that the defendant spoliator had actual knowledge of pending or potential litigation;
(2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request;
(3) that the missing evidence was vital to the plaintiff's pending or potential action.
Once all three of these elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation; the defendant must overcome that rebuttable presumption or else be liable for damages.