Courts throughout the United States have different perspectives on the actions that constitute spoliation of evidence and the situations in which these actions should be sanctioned. Furthermore, as courts examine and re-examine these concepts over time, their perspectives shift. Therefore, attorneys, e-discovery practitioners, and parties in litigation must keep in mind the distinctions among different jurisdictions’ definitions of spoliation and their standards for when, and what types, of sanctions should be applied in light of such spoliation.

In its recent decision Seattle Tunnel Partners v. Great Lakes Reinsurance (UK) PLC, __ P.3d __ (Wash. Ct. App. Mar. 27, 2023), the Washington Court of Appeals, Division 1, discusses the evolution of Washington case law on spoliation of evidence and provides clarity around the circumstances that would justify the imposition of spoliation sanctions in this jurisdiction. Interestingly, the limits identified in this opinion regarding when spoliation sanctions are available differ from those in place in the federal courts and the courts of other states.

First, the opinion states that Washington state’s case law on spoliation requires, as a threshold showing, that the alleged spoliating party owed a duty to the party seeking sanctions to preserve the missing, lost, or destroyed evidence. The court found that, while petitioner Seattle Tunnel Partners (“STP”) owed a contractual duty to preserve records to the respondent Washington State Department of Transportation (“WSDOT”), it had no such parallel duty to the respondent insurers. Id. at 30-33. Also, the court highlighted how Washington courts differ from federal courts through their “repeated[] refus[al] to impose a general duty of evidence preservation merely because litigation is foreseeable in the absence of a demand for the retention of, or access to, the evidence, merely because litigation is foreseeable.” Id. at 34 (citations omitted). Absent any contractual duty to the insurers, any general duty related to the foreseeable litigation, or any showing that Seattle Tunnel Partners disposed of the relevant evidence either “on the eve of litigation” or after receiving a request from the insurers to preserve any evidence, the court held that the respondent insurers were “not entitled to spoliation sanctions against STP.” Id. at 35.

Second, the opinion notes that, under Washington state case law, an adverse inference jury instruction is only appropriate as a sanction for the intentional destruction of evidence or the willful failure to preserve evidence with an improper motive (i.e., bad faith). The appellate court’s analysis focused on “the grey zone” of “whether this particular sanction is appropriate for conduct that is neither innocent nor negligence, but also neither intentional or done with an improper motive.” Id. at 36. The court, assuming that STP “consciously disregarded the importance of the evidence to WSDOT,” held that failure to preserve evidence on that basis “does not demonstrate a consciousness of a weak case or a desire to suppress the truth.” Id. at 36-37. On that basis, the court concluded that an adverse inference jury instruction was not an appropriate spoliation sanction in this case. Id. at 37-38.

Third, the opinion explains that, under Washington state case law, harsh sanctions for spoliation of evidence are only appropriate where that evidence is sufficiently important to the case.  The appellate court describes six factors to consider when evaluating the importance of missing, lost, or destroyed evidence in the spoliation context, including “(1) whether the missing evidence would provide direct evidence of a claim or defense; (2) whether the lost evidence is cumulative of other available evidence; (3) whether the culpable party admitted the evidence’s importance; (4) whether the nonspoliating party had the opportunity to inspect the evidence before it was lost; (5) whether the loss of the evidence impeded parties from developing expert opinions on liability, causation or damages; and (6) whether the loss of the evidence gave the culpable party an investigative advantage to the prejudice of the nonspoliating party.” Id. at 37-38 (footnotes omitted). Applying these factors, the court concluded that the evidence was “not of sufficient important to WSDOT’s insurance coverage claim against the Insurers to justify the imposition of an adverse inference instruction against STP.” Id. at 43.

A copy of this court opinion can be accessed at this link.