Reynolds v. Bordelon: The Beginning of the End for the Tort of Spoliation

October 26, 2015

By Anthony Gambino, Jr., Senior Associate

Introduction

Imagine getting into a car accident. The airbags do not deploy, making the risk of injury much worse. The car’s airbags are possibly defective, and there might be a products liability claim against the manufacturer of the vehicle. However, a third party accidentally destroys the vehicle before an inspection for defects takes place. Can you hold that person liable for negligence? The Louisiana Supreme Court in Reynolds v. Bordelon answered “no.”[1]

The Reynolds decision marked the first time the Louisiana Supreme Court addressed the tort of negligent spoliation of evidence, and the Court has never decided whether intentional spoliation is actionable under Louisiana tort law.[2] Although the facts of Reynolds are limited to negligent spoliation by a third party, the Court’s reasoning can be applied to all claims alleging tortious spoliation. Based on the strong language of Reynolds and the Court’s reliance on California jurisprudence eliminating spoliation claims, the Louisiana Supreme Court will likely expand its holding in Reynolds to all spoliation torts in the future.

I. Louisiana Civil Code Article 2315: The Foundation of Louisiana Tort Law

Louisiana Civil Code article 2315 provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”[3] “Fault” as used in Article 2315 is the violation of a duty owed by a wrongdoer to a victim.[4] Therefore, to hold a defendant liable based on negligence, or any tort–based cause of action, a court must first consider whether the defendant owed a duty to the plaintiff.[5]

Courts, including the Supreme Court in Reynolds, often use public policy considerations to decide whether a duty exists.[6] Such considerations include: deterring undesirable conduct, avoiding the deterrence of desirable conduct, compensating victims, satisfying the community’s sense of justice, allocating resources (including judicial resources) properly, encouraging predictability, and deferring to legislative will.[7] The Reynolds Court found no duty to preserve evidence based on these considerations and concluded that no cause of action for negligent spoliation of evidence exists under Louisiana law.[8]

II. No Cause of Action for Negligent Spoliation of Evidence

In Reynolds, the plaintiff was involved in a multi-car accident where his airbags failed to deploy.[9] The plaintiff sued the manufacturer of his vehicle under the Louisiana Products Liability Act for an alleged airbag defect.[10] Despite being put on notice of the need for preservation, both the plaintiff’s insurer and the custodian of the vehicle after the accident failed to preserve his vehicle for inspection purposes.[11] The insurer paid the plaintiff what was due under the policy and took title of the vehicle; then, the custodian auctioned the vehicle to a salvage yard for parts.[12] As a result, Reynolds brought a negligence action against his insurer and the custodian for their failure to preserve his vehicle.[13] The Court held “that no cause of action exists for negligent spoliation of evidence.”[14]

The Court reached this result for several policy reasons. First, negligent spoliation of evidence is “so unintentional an act” that a duty to preserve evidence will likely not deter future conduct.[15] This is especially true among third parties who have no interest in the underlying case.[16] Second, any damages that result from negligent spoliation will likely be highly speculative in nature.[17] Third, a cause of action for negligent spoliation necessarily expands the number of potential plaintiffs and defendants and may open the floodgates to speculative litigation.[18] Finally, this cause of action would require certain persons and industries to undergo costly and unnecessary evidence storage.[19] In the Reynolds case, the Court used these public policy considerations to establish a categorical “no duty” rule for preserving evidence.[20]

III. What Comes Next? Reynolds and the Future of the Tort of Spoliation in Louisiana

In Reynolds, the plaintiff brought suit against a third party spoliator. However, the decision will likely lead to the elimination of all spoliation torts in future cases. Following Reynolds, a negligence cause of action against a first party spoliator likely does not exist. Moreover, the decision provides support for the argument that intentional spoliation is not actionable under Louisiana tort law. Therefore, Reynolds likely marks beginning of the end of the tort of spoliation in Louisiana.

From the outset, the Court’s language in Reynolds evidences an intent to eliminate the tort of negligent spoliation entirely.[21] The Court never expressly limited its holding and often discussed the tort of negligent spoliation generally.[22] Further, the Court discussed alternative legal remedies a litigant has against first party spoliators, which would be unnecessary if the Court’s analysis was limited to third party spoliation.[23] Nonetheless, even if the holding is limited to its facts, Reynolds can be applied by analogy to a negligent, first party spoliator. Thus, a negligence cause of action against a first party spoliator likely does not exist.

Even more dramatically, Reynolds may lead to the elimination of a cause of action for the tort of intentional spoliation. In Temple Community Hospital v. Superior Court, the California Supreme Court held that there is no tort cause of action for intentional, third party spoliation.[24] The California Supreme Court issued this ruling one year after it held that there is no cause of action for intentional, first party spoliation under California law.[25] Although there is an obvious difference between negligent and intentional spoliation, the policy considerations that informed the Reynolds decision also informed the California Supreme Court’s decisions.[26] Furthermore, the Reynolds Court quoted Temple Community Hospital and adopted some of that decision’s logic to bolster its holding.[27] Thus, Reynolds may even lead to the Louisiana Supreme Court concluding that there is no cause of action for intentional spoliation of evidence.

Conclusion

            Citing policy considerations and adopting much of the reasoning set forth in California jurisprudence, the Louisiana Supreme Court held that there is no cause of action for negligent spoliation of evidence under Louisiana tort law. Although the underlying facts involved a negligent third party spoliator, the Reynolds decision may be the first in a line of cases that repudiate the tort of spoliation altogether.

[1] Reynolds v. Bordelon, No. 2014–C–2362, 2015 WL 3972370, at *1 (La. June 30, 2015).

[2] See Danielle Borel, Comment, The Land of Oz: Spoliation of Evidence in Louisiana, 74 La. L. Rev. 507, 516 (2014) (explaining spoliation and providing a detailed history of Louisiana appellate decisions related to a tort cause of action for spoliation).

[3] La. Civ. Code art. 2315 (2015).

[4] William E. Crawford, Tort Law § 2.1, in 12 Louisiana Civil Law Treatise 57 (2d ed. 2009) (“Fault consists of the violation of a duty owed by the actor to the victim.”).

[5] Id. at § 2.3, at 58 (“Before finding negligence, the court must find that the defendant owed a duty to the plaintiff.”).

[6] Reynolds, 2015 WL 3972370, at *5.

[7] Id.

[8] Id.

[9] Id. at *1.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id. at *5.

[16] Id.

[17] Id.

[18] Id. at *6 (“Allowing a derivative tort . . . could open the floodgates for endless lawsuits where the loss is speculative at best.”).

[19] Id. (discussing the cost of storing large, totaled cars).

[20] Id. at *1 (“Regardless of any alleged source of the duty . . . public policy in our state precludes the existence of a duty to preserve evidence. Thus, there is no tort.”).

[21] See, e.g., id. (“We granted certiorari to determine whether Louisiana recognizes the tort of negligent spoliation.”).

[22] See, e.g., id. at *4 (“The duty inquiry is central to our discussion on whether Louisiana recognized the tort of negligent spoliation of evidence.”).

[23] Id. at *8 (“Discovery sanctions and criminal sanctions are available for first-party spoliators.”).

[24] 976 P.2d 223, 233 (Cal. 1999).

[25] Cedars-Sinai Med. Ctr. v. Superior Court, 954 P.2d 511, 512 (Cal. 1998).

[26] See, e.g., Temple Cmty. Hosp., 976 P.2d at 233 (“In sum, we conclude that the benefits of recognizing a tort cause of action . . . 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.”); Cedars-Sinai Med. Ctr., 954 P.2d at 521 (“[W]hatever incremental additional benefits a tort remedy might create are outweighed by the policy considerations and costs described above.”).

[27] Reynolds, 2015 WL 3972370, at *8.

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