In a detailed opinion, the court recognized the concept of spoliation and found that it, in fact, may have occurred there. The court remanded the case for repleading, stating that "a complaint could be drafted that would state a cause of action for negligent spoliation of evidence [that] would survive a section 2-615 challenge." Jackson v. Michael Reese Hospital and Medical Center, 294 Ill.App.3d 1, 18, 689 N.E.2d 205 (1st Dist. 1998). The complaint has since been refiled.

The concept of spoliation of evidence is relatively new. The Illinois Supreme Court held that an action for negligent spoliation of evidence can be established under existing negligence theories. Boyd v. Traveler’s Insurance Co., 166 Ill.2d 188, 652, N.E.2d 267 (1995).

Although the Boyd court declined to decide whether a causation of action exists in Illinois for intentional spoliation, the U.S. District Court predicted that Illinois would, in fact, recognize this cause of action if presented with the proper facts. Williams v. General Motors Corp., No. 93C6661 (N.D.Ill.July 25, 1996).

Boyd perhaps even suggests the possibility it may recognize such a cause of action as a new tort, with the possibility of punitive damages as a remedy.

California was the first state to recognize the tort of intentional spoliation of evidence in Smith v. Superior Court, 198 Cal.Rptr. 829 (Ct.App.2d Dist. 1984). The tort of negligent spoliation was established a year later. Velasco v. Commercial Bldg. Maintenance Co., 215 Cal.Rptr. 504 (Ct.App.2d Dist. 1985).

States vary as to whether they recognize spoliation as an independent tort or solely under negligence principles or a combination of both. Still others have explicitly rejected the tort as a cognizable independent tort action.

Spoliation of evidence results from a party’s or a third party’s intentional or negligent destruction or alteration of tangible evidence, interfering with a party’s ability to prove or defend an existing or prospective civil action. My colleagues and I are seeing an increased frequency of spoliation claims in the civil practice arena. It appears that some parties would rather gamble and face a spoliation claim than face the effects of disclosing potentially damaging evidence to an opponent in a lawsuit, and the courts appear now to be ready to deal with it.

Courts are demonstrating more and more that they recognize the seriousness of frustrating the discovery process through the destruction of evidence, and the legitimate concerns are being carried out through the various remedies available.

Some courts have granted dismissal of the action. Farley Metals, Inc. v. Barber Colman Co., 269 Ill.App.3d 104, 645 N.E.2d 964 (1st Dist. 1994).

Other courts have granted a motion to exclude evidence. Shelbyville Mutual Insurance Co. v. Sunbeam Leisure Products Co., 262 Ill.App.3d 636, 634 N.E.2d 1319 (5th Dist. 1994); Graves v. Daley, 172 Ill.App.3d 35, 526 N.E.2d 679 (3d Dist. 1988).

Still other courts have granted an adverse jury inference instruction. Fitzpatrick v. ACF Properties Group, Inc., 231 Ill.App.3d 690, 595 N.E.2d 1327 (2d Dist. 1992); Braverman v. Kucharik Bicycle Clothing Co., 287 Ill.App.3d 150, 678 N.E.2d 80 (1st Dist. 1997).

In determining which sanction to impose, courts have used a variety of tests, including culpability of the spoliating party, prejudice to the non-offending party, the degree of interference with the judicial process and whether a lesser sanction will remedy the harm and deter future acts of spoliation.

Illinois opinions, though, don’t turn on whether the destruction of evidence was intentional or inadvertent, but, instead, focus on whether the alleged spoliator knew that the evidence would be material in a potential case and the degree of prejudice suffered by the non-spoliator. Whether the destruction of evidence occurred prior to the filing of a lawsuit may be a difference with a distinction in the analysis.

For all practical purposes, in Illinois spoliation is argued and considered by the courts as if it were an independent cause of action. And perhaps there’s a good reason for it.

It is necessary for the courts to send a message to corporations throughout the state that the destruction of records, either intentionally or negligently, will not be tolerated. In this age of high-tech document management, the need to minimize the risk of improperly destroying evidence is important. Even "accidents" cannot be tolerated when they lead to the obstruction of justice.

Corporations need to be made cognizant of their important responsibilities and their consequent potential exposure to liability. A practice records-retention policy should be one that is unrelated to any contemplated or pending litigation and is based solely on the company’s legitimate business purposes; however, once any injury occurs, a system to protect and preserve the evidence should be immediately in force.

Spoliation by any name is cheating. The spoliation of evidence creates an increase in the potential that a party may win or lose a lawsuit unfairly. Courts should take harsh measures in discouraging this type of conduct so that the parties may operate on a more level playing field.