Negligent Third Party Spoliation of Evidence
Cedars-Sinai Medical Center v. Superior Court (1998) began its analysis of the issue "whether to create a tort remedy for intentional first party spoliation" by considering general principles of tort law.
First, the court noted that " '[a] tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured.' (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, 6, p. 61.)
At issue here is whether to impose on parties to a lawsuit a duty to avoid the intentional destruction of evidence relevant to the lawsuit. As we have stated, the concept of duty ' "is a shorthand statement of a conclusion, rather than an aid to analysis in itself." ' (Dillon v. Legg (1968) 68 Cal. 2d 728, 734 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].)
It is ' "only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' (Ibid.)
Thus, we must examine and weigh the relevant 'considerations of policy' that favor or oppose a tort remedy for intentional first party spoliation." ( Cedars-Sinai, supra, 18 Cal. 4th at p. 8.)
The Supreme Court in Cedars-Sinai and Temple Community Hospital v. Superior Court (1999) decided not to impose a duty in intentional spoliation cases after weighing the relevant policy considerations and concluding that "the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies." (Temple Community, supra, 20 Cal. 4th at p. 478, fn. omitted.)
The same policy considerations are present here, and the fact that the tort is for negligent rather intentional spoliation carries no significant weight in the balancing process.