I. Elements/definition of spoliation of evidence: Is it an “intentional or fraudulent” threshold or can it be negligent destruction of evidence.
Illinois law does not recognize a separate and independent tort for spoliation of evidence. Dardeen v. Kuehling, 213 Ill. 2d 329, 821 N.E.2d 227 (2004); Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). In Boyd, the seminal Illinois Supreme Court decision addressing spoliation of evidence, the court recognized that a claim for negligent spoliation of evidence could be brought under existing negligence principles. 166 Ill. 2d at 192-93, 652 N.E. 2d at 270. Subsequent Illinois decisions have declined to extend Boyd to allow claims for intentional or fraudulent spoliation of evidence. Orr v. Knapheide Mfg. Co., No. 10-CV-1123, 2010 U.S. Dist. LEXIS 125348, at *5-10 (C.D. Ill. Oct. 26, 2010); Dardeen, 213 Ill. 2d at 335-36, 821 N.E.2d at 231; Cangemi v. Advocate South Suburb. Hosp., 364 Ill. App. 3d 446, 471-72, 845 N.E.2d 792, 814-15 (1st Dist. 2006).
To state a cause of action for negligent spoliation of evidence, a plaintiff must plead: (1) the existence of a duty to preserve evidence owed by the defendant to the plaintiff; (2) a breach of that duty; (3) an injury or damages proximately caused by the breach; and, (4) damages. Boyd, 116 Ill. 2d at 194-95, 652 N.E.2d at 270; Martin v. Keeley & Sons, Inc., 2011 IL App (5th) 100117 ¶18; Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212, 215, 793 N.E.2d 962, 966 (2nd Dist. 2003). In deciding the sufficiency of a claim for negligent spoliation of evidence, Illinois courts look most critically at the duty and causation elements.
A. Duty
In Illinois, the general rule is that there is no duty to preserve evidence. A duty to preserve evidence, however, may arise through an agreement, a contract, a statute, or another “special circumstance”. Additionally, a defendant may voluntarily assume a duty to preserve evidence by affirmative conduct. Dardeen, 213 Ill. 3d at 335, 821 N.E.2d at 231; Boyd, 116 Ill. 2d at 195, 652 N.E.2d at 270. Under any of the foregoing instances, a defendant owes a duty of due care to preserve evidence “if a reasonable person in defendant’s position should have foreseen that the evidence was material to a potential civil action.” Boyd, 116 Ill. 2d at 195, 652 N.E.2d at 270. In Dardeen, the Illinois Supreme Court articulated a two-prong test for determining whether a pleading sufficiently alleges a duty to preserve evidence. The first prong addresses whether the party claiming spoliation alleges sufficient facts establishing a duty to preserve evidence through an agreement, a contract, a statute, “special circumstances”, or a voluntary undertaking (the “relationship prong”). If the “relationship prong” is satisfied, the second prong analyzes whether the duty to preserve extends to the evidence at issue, i.e., if a reasonable person in defendant’s position should have foreseen the evidence as material to a potential civil suit (the “foreseeability prong”). If the party claiming spoliation fails to satisfy both prongs, there is no duty to preserve the evidence at issue. Dardeen, 213 Ill. 2d at 336, 821 N.E.2d at 221.
A mere request that a party preserve evidence is generally insufficient to impose a duty absent some further special relationship as set forth in Boyd. Andersen, 341 Ill. App. 3d at 217-18, 793 N.E.2d at 969. For a duty based on an agreement or contract, the agreement or contract must be between the parties to the spoliation claim. Dardeen, 213 Ill. 2d at 336-37, 821 N.E. 2d at 231. A statute may create a duty to preserve evidence. Rodgers v. St. Mary’s Hosp., 149 Ill. 2d 302, 308, 597 N.E.2d 616, 619 (1992). Further, a duty to retain the evidence beyond the statutory period may arise upon notice from an attorney of potential litigation or by affirmative conduct establishing a voluntary assumption of the duty to preserve. Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 713-16, 779 N.E.2d 1167, 1171-74 (5th Dist. 1999); Jackson v. Michael Reese Hosp. & Med. Ctr., 294 Ill. App. 3d 1, 10-11, 689 N.E.2d 205, 212 (1st Dist. 1997). To establish a duty to preserve evidence based upon a voluntary assumption, the party claiming spoliation must allege facts describing the affirmative conduct. Jackson, 294 Ill. App. 3d at 11, 689 N.E. 2d at 212. What constitutes a “special circumstance” which would give rise to a duty to preserve has yet to be defined by Illinois courts. Although a protective order or other judicial order clearly creates a duty to preserve evidence, the Illinois Supreme Court has held that a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant and material evidence prior to the filing of a lawsuit or entry of a protective order. Shimanovsky v. General Motors Corp., 181 Ill. 2d 112, 121, 692 N.E .2d 286, 289-90 (1998). The Illinois Supreme Court in Dardeen distinguished its holding in Boyd that “the general rule is that there is no duty to preserve evidence” with its holding in Shimanovsky that “a potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant, material evidence” on the basis that the issue in Shimanovsky concerned whether the complaint could be dismissed as a discovery sanction whereas Boyd considered the sufficiency of a claim for negligent spoliation of evidence. Dardeen, 213 Ill. 2d at 339-40, 821 N.E.2d at 233. Illinois courts apparently view a claim for negligent spoliation of evidence and a dismissal or other sanction under Illinois Supreme Court Rule 219(c) as separate and distinct. Adams v. Bath and Body Works, Inc., 358 Ill. App. 3d 387, 393, 830 N.E.2d 645, 654 (1st Dist. 2005).
Whether a duty to preserve evidence is found to exist through an agreement, a contract, a statute, a “special circumstance”, or by voluntary assumption, the duty is imposed by operation of law. A party does not waive a spoliation claim in failing to respond to a request to examine the evidence. Brobbey v. Enterprise Leasing Co., 404 Ill App. 3d 420, 434, 922 N.E. 2d 1084, 1096 (1st Dist. 2010). There appears to be no duty, however, if a party or the party’s representatives examine the evidence and fail to request that the evidence be further preserved. Burlington N. & Santa Fe Ry. Co., 389 Ill. App. 3d 691, 713, 906 N.E.2d 83, 102 (1st Dist. 2009).
B. Breach Of Duty
The breach of a duty to preserve evidence occurs upon the loss, destruction, alteration or non-preservation of the subject evidence. Alleging a failure to take reasonable steps to guard against or otherwise protect the lost or destroyed evidence evidence is sufficient to plead the breach of the duty. Jackson, 294 Ill. App. 3d at 13, 689 N.E. 2d at 210. Illinois further recognizes that preserving some evidence without preserving all relevant evidence which could possibly explain other potential causes of the occurrence constitutes a breach of duty by the party with the opportunity to preserve the evidence. Shelbyville Mutual ins. Co. v. Sunbeam Leisure Prods. Co., 262 Ill. App. 3d 636, 641-43, 634 N.E.2d 1319, 1323-24, (5th Dist. 1994); American Family Ins. Co. v. Village Pontiac GMC, Inc., 223 Ill. App 3d 624, 626-28, 585 N.E.2d 1115, 1117-19 (2d Dist. 1992).
C. Causation
In negligence spoliation of evidence claims, a party must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the party to be unable to prove the underlying lawsuit. A plaintiff must demonstrate that “but for” the defendant’s loss or destruction of the evidence, the plaintiff had a reasonable probability of succeeding in the underlying lawsuit. A defendant may be held liable in a negligent spoliation action only if its loss or destruction of the evidence caused plaintiff to be unable to prove the underlying lawsuit. Boyd, 116 Ill. 2d at 198, 652 N.E.2d at 272. If the plaintiff could not prevail in the underlying lawsuit even with the lost or destroyed evidence, then defendant’s conduct is not the cause of the loss of the lawsuit. Boyd, 166 Ill. 2d at 196, 652 N.E.2d at 271; Andersen, 341 Ill. App. 3d at 218, 793 N.E. 2d at 969. Therefore, a party must allege a nexus between the lost or destroyed evidence and the loss of its claim or defense. Midwest Trust Serv., Inc. v. Catholic Health Partners Serv., 392 Ill. App. 3d 204, 210, 910 N.E. 2d 638, 643 (1st Dist. 2009); Andersen, 341 Ill. App. 3d at 218-19, 793 N.E.2d at 969; Thornton v. Shah, 333 Ill. App. 3d 1011, 1020-21, 777 N.E.2d 396, 404-05 (1st Dist. 2002); Jackson, 294 Ill. App. 3d at 15, 689 N.E.2d at 214. Further, a claim for negligent spoliation of evidence may be tried concurrently with the underlying lawsuit before a single jury. Boyd, 166 Ill. 2d at 196, 652 N.E.2d at 271.
D. Damages
A negligent spoliation of evidence claim requires that actual damages be plead. The threat of future harm, not yet realized, is not actionable. Boyd, 116 Ill. 2d at 197, 652 N.E.2d at 272. Allegations of how a party was damaged by the loss or destruction of the evidence is required. Jackson, 294 Ill. App. 3d at 17, 689 N.E.2d at 216. In Boyd, the plaintiff sufficiently alleged actual damages by alleging serious personal injuries from a heater explosion, the proper elements of a product liability action, the loss of the heater by the defendant’s insurer, and a nexus between the plaintiff’s inability to prove the underlying action and the loss of the heater. Boyd, 116 Ill. 2d at 196-98, 652 N.E.2d at 272; Jones v. O’Brien Tire & Battery Serv. Ctr., 322 Ill. App. 3d 418, 424, 752 N.E.2d 8, 14 (5th Dist. 2001).
II. Distinction between first party and third party spoliation.
Illinois does not recognize a distinction between first party and third party spoliation. Where another party has destroyed or altered evidence, that party may be joined as a direct defendant or a third-party defendant in a claim for negligent spoliation of evidence. Boyd, 166 Ill. 2d at 198-99, 652 N.E.2d at 272; Jones v. O’Brien Tire & Battery Serv. Ctr., 374 Ill. App. 3d 918, 871 N.E.2d 98 (5th Dist. 2007). Illinois courts have declined to address whether actual possession is required to impose a duty to preserve the evidence. Dardeen, 213 Ill. 2d at 339, 821 N.E.2d at 233. When the third party is not in possession, the duty element is satisfied by alleging facts of affirmative conduct establishing a voluntary assumption of the duty to preserve. Jones, 374 Ill. App. 3d at 927, 871 N.E.2d at 107-08. The causation requirement for third-party complaints alleging negligent spoliation of evidence is generally satisfied by alleging that the destroyed or altered evidence impaired the direct defendant’s ability to defend itself. Jones, 322 Ill. App. 3d at 423-24, 752 N.E.2d at 12.
III. Whether there is a separate cause of action for a spoliation claim.
Illinois law does not recognize a separate, independent tort for spoliation of evidence. Dardeen, 213 Ill. 2d at 335-36, 821 N.E.2d at 231; Boyd, 166 Ill. 2d at 192-93, 652 N.E.2d at 269-70; Martin, 2011 IL App (5th) 100117 ¶18; Andersen, 341 Ill. App. 3d at 215, 793 N.E.2d at 965. Spoliation of evidence does not provide an independent basis for a tort claim, but relief is available if a claim can be stated under ordinary negligence law. Andersen, 341 Ill. App. 3d at 215, 793 N.E.2d at 965.
IV. Remedies when spoliation occurs:
Illinois law provides two remedies for a party claiming spoliation. A party may (1) bring a claim for negligent spoliation of evidence (see above), or (2) seek sanctions, including dismissal of the complaint or a defense, under Illinois Supreme Court Rule 219(c). Boyd, 166 Ill. 2d at 193, 652 N.E.2d at 270; Shimanovsky, 181 Ill. 2d at 120, 692 N.E.2d at 289; Adams, 358 Ill. App. 3d at 393-94, 830 N.E.2d at 652. A party is not automatically entitled to a specific sanction because evidence is destroyed or altered. Illinois Supreme Court Rule 219(c) grants the court discretion to impose a sanction for discovery violations(failure to produce requested evidence)or violations of court orders. The court must consider the unique situation of each case and apply the appropriate criteria to the facts to determine what particular sanction, if any, should be imposed. Shimanovsky, 181 Ill. 2d at 127, 692 N.E.2d at 292-93.
The factors considered in determining the appropriate sanction are: (1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and, (6) the good faith of the party offering the testimony or evidence. Shimanovsky, 181 Ill. 2d at 124, 692 N.E.2d at 291. The mode of relief most appropriate depends on the party’s culpability in altering or destroying the evidence and the prejudicial effect on the party claiming spoliation. Shimanovsky, 181 Ill. 2d at 123, 692 N.E.2d at 291; Adams, 358 Ill. App. 3d at 394, 830 N.E.2d at 652; Farley Metals, Inc. v. Barber Colman Co., 269 Ill. App. 3d 104, 113-14, 645 N.E.2d 964, 970 (1st Dist. 1995).
A. Negative Inference Instruction
Illinois has approved the use of Illinois Pattern Jury Instruction 5.01 (I.P.I., Civil, 5.01) against a party failing to produce evidence through loss, alteration or destruction. I.P.I. 5.01 allows a jury to draw an adverse inference from a party’s failure to produce evidence if the moving party produces foundational evidence of each of the following: (1) the evidence was under the control of the opposing party and could have been produced through the exercise of reasonable diligence; (2) the evidence was not equally available to each party; (3) a reasonably prudent person under the same or similar circumstances would have offered the evidence if he believed the evidence to be in his favor; and (4) no reasonable excuse for the failure to produce has been shown. Graves v. Rosewood Care Ctr., Inc., 2012 IL App (5th) 100033 ¶24; Uhr v. Lutheran General Hosp., 226 Ill. App. 3d 236, 261-62, 589 N.E.2d 723, 742 (1st Dist. 1992); Roeseke v.Pryor, 152 Ill. App. 3d 771, 78081, 504 N.E.2d 927, 933 (1st Dist. 1987). The issuance of a 5.01 instruction rests within the court’s discretion and is subject to reversal only on a clear abuse of discretion. Graves, 2012 IL App (5th) 100033 ¶24; Roeske, 152 Ill. App. 3d at 780, 504 N.E.2d at 933. The instruction is not warranted if the lost or destroyed evidence is merely cumulative of the facts and circumstances established. Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 1009, 785 N.E.2d 507, 519 (5th Dist. 2003).
B. Dismissal
Dismissal of a claim, defense or affirmative defense as a sanction under Illinois Supreme Court Rule 219(c) is not dependent on the entry of a protective order. Shimanovsky, 181 Ill. 2d at 120-21, 692 N.E. 2d at 289-90; American Family, 223 Ill. App. 3d at 626, 585 N.E.2d at 1118. A potential litigant owes a duty to take reasonable measures to preserve the integrity of relevant, material evidence even prior to the filing of a lawsuit or entry of a protective order. Adams, 358 Ill. App. 3d at 395, 830 N.E.2d at 652-53. Dismissal as a sanction requires conduct which shows a deliberate, contumacious or unwarranted disregard of the court’s authority. Marrocco v. General Motors Corp., 966 F. 2d 220 (7th Cir. 1992) (dismissing complaint for contumacious destruction of a wheel assembly in violation of a protective order); Shimanovsky, 181 Ill. 2d at 123, 692 N.E. 2d at 291; Adams, 358 Ill. App. 3d at 394, 830 N.E. 2d at 652. For negligent or inadvertent destruction or alteration of evidence, a party can seek redress by asserting a claim for negligent spoliation of evidence (see above). Adams, 358 Ill. App. 3d at 394, 830 N.E.2d at 653. But see Jones v. Goodyear Tire & Rubber Co., 966 F. 2d 220, 224 (7th Cir. 1992)(granting a directed verdict in favor of plaintiff for inadvertent loss of tire parts in holding that sanctions are not limited to willful non-compliance); Farley, 269 Ill. App. 3d at 110, 645 N.E. 2d at 968 (dismissing complaint and holding that “negligent or inadvertent destruction or alteration of evidence may result in a harsh sanction, including dismissal, when a party is disadvantaged by the loss”).
C. Criminal Sanction
Illinois does not provide for criminal sanctions as it does not recognize intentional or fraudulent spoliation of evidence.
D. Other Sanctions
Absent dismissal, Illinois Supreme Court Rule 219(c) allows courts to fashion a myriad of sanctions. Available sanctions include: barring the filing of a particular claim, counterclaim, third-party complaint, defense or affirmative defense; barring a witness from testifying; barring expert opinion testimony or reports; precluding additional testing; and, barring other testimony or evidence based on or relating to the spoiled evidence. A court may additionally order payment of reasonable expenses, including attorney’s fees, incurred as a result of the misconduct associated with the spoliation as well as a monetary fine if the conduct is willful. Ill. Sup. Ct. R. 219(c); American Family, 223 Ill. App. 3d at 626-27, 585 N.E.2d at 1118; Argueta v. Baltimore & O.C.T.R.R., 224 Ill. App. 3d 11, 586 N.E. 2d 386 (1st Dist. 1992).
V. Spoliation of electronic evidence and duty to preserve electronic information.
Illinois recognizes a duty to preserve relevant and material evidence. The analysis is the same for both physical evidence and electronic evidence.
VI. Retention of surveillance video.
There exists no statutory duty to retain or preserve surveillance video under Illinois law. Although no independent duty to preserve surveillance video is recognized, a possessor of video footage may create a duty under the Boyd scenarios to preserve the video. Absent a statutory duty, Illinois courts will analyze whether a duty exists through an agreement, a contract, a “special circumstance” or by voluntary assumption of a duty to preserve. Boyd, 116 Ill. 2d at 195, 652 N.E.2d at 270. Under any of the foregoing circumstances, a possessor of the surveillance video would owe a duty of reasonable care to preserve the video if a reasonable person in the possessor’s position should have foreseen that the surveillance video was material to a potential civil action. Id. Of the Boyd scenarios, a possessor creating a duty by voluntary assumption seems most likely. However, in an unpublished opinion, an Illinois court held that a party’s internal policy to save its surveillance video after an incident insufficient to constitute a voluntary assumption that would create such a duty. Ballerini v. Wal-Mart Stores, Inc., 2012 Ill. App. (3d) 110423U ¶16 (“the law, not defendant’s internal policies, defines whether a duty exists”). But see Shimanovsky and its progeny, holding that a potential litigant is held to owe a duty to take reasonable measures to preserve and produce relevant evidence even prior to the filing of a lawsuit or entry of a protective order. Shimanovsky, 181 Ill. 2d at 120-21, 692 N.E.2d at 289-90; Adams, 358 Ill. App. 3d at 395, 830 N.E. 2d at 653.
