Alabama Spoliation of Evidence Guide for Lawyers

Spoliation of evidence can be a critical issue in litigating any of type of civil case. In this Alabama Spoliation of Evidence Guide for Lawyers, we will cover case law and tips for litigating spoliation issues.

What is Spoliation of Evidence in Alabama?

Spoliation of evidence is defined as “an attempt by a party to suppress or destroy material evidence favorable to the party’s adversary.” May v. Moore, 424 So. 2d 596 (Ala. 1982). As a general rule, if the trier of fact finds a party guilty of spoliation, it is authorized to presume or infer that the missing evidence reflected unfavorably on the spoliator’s interest. Vesta Fire Ins. v. Milam, 901 So. 2d 84 (Ala. 2004). In other words, proof of spoliation will support an inference of guilt or negligence.

Five Factor Test in Alabama for Spoliation

If the issue of spoliation is raised, then a court will examine five factors in determining whether there was indeed spoliation. These five factors are found in Ex parte Water Works, 328 So. 3d 802 (Ala. 2020).

The importance of the evidence destroyed;
The culpability of the offending party;
Considerations of “fundamental fairness”;
Alternative sources of the information obtainable from the evidence destroyed;
Possible effectiveness of sanctions

How the Court applies these five factors has shifted with time. Therefore, let’s take an in-depth look at the Ex parte Water Works decision, which is one of the most recent spoliation opinions issued by the Supreme Court of Alabama:

Spoliation Analysis in Ex parte Water Works

The plaintiffs in the case brought action against the defendants regarding water damage that created problems in their home. The water leak seemed to have been caused by a faulty meter, cap, and lock. The Board petitioned the Supreme Court of Alabama for a writ of mandamus directing the Calhoun Circuit Court to vacate the order for partial summary judgment in favor of the plaintiffs.

The first factor is the importance of the evidence. The importance of the evidence for the water leak was vital to the claim as the evidence would provide the best opportunity to prove the plaintiff’s claim. This factor weighed in favor of the plaintiff.

The culpability of the offending party is the second factor. The court decided that the primary consideration in determining the Board’s culpability was whether it knew or should have known that the cap, lock, and meter would be key evidence supporting the interests of the plaintiffs in foreseeable litigation by the plaintiffs against the Board. Id. at 811. The court used the evidence before them in a light most favorable to the Board and concluded that the trial court could have assigned some culpability to the Board. However, the court went on to state that the Board did not know that the plaintiffs would initiate litigation because from the Boards perspective, the water was leaking because of a third-party. Id. at 812. Therefore, the court concluded that the culpability would be relatively low.

The third factor is fundamental fairness. The court in Ex parte Water Works agreed that it would be fundamentally unfair to allow the Board to present evidence indicating that a third-party tampered with the equipment if the plaintiffs could not rebut that evidence. Although, because the plaintiffs did have testimony from someone who saw the cap, lock, and meter, the court determined that the plaintiffs failed to demonstrate that fundamental fairness required sanctions.

The fourth factor is alternative sources of information obtainable from the evidence destroyed. Similar to the last factor, the plaintiffs in this case did have evidence that could have been provided. Therefore, alternative sources were available and obtainable from the evidence destroyed, i.e. witness testimony.

The Court then considered the fifth factor in light of the trial court’s grant of partial summary judgment on the issue of liability against the Board. The Court held that the severity of the sanctions imposed by the trial court was too severe. The Court reasoned that a jury charge on the issue of spoliation would have been more proportional to the culpability of the Board. Our Supreme Court noted that there is a long-established objective of “affording litigants a trial on the merits whenever possible.”

Practical Pointers for Alabama Lawyers on Spoliation

Every attorney knows to not suppress or destroy material evidence. However, our clients may not be aware of this obligation. It would be best practice to advise the client of this (in writing) at your initial consult with your client. In the event your client does destroy important evidence, at least you can show the client that it was against your instructions.

In addition, you or your client have an obligation to retain the evidence is the “same or similar condition.” Just keeping the evidence may not be sufficient. Keep this in mind when there are photos, videos, or anything that is capable of being altered digitally.

If you are the attorney attempting to prove spoliation by your adversary, then issue thorough discovery once you are made aware that documents are “missing.” Our Supreme Court has routinely focused on the factor of “culpability” the most when issuing opinions on spoliation. Tailor your discovery to find out when, why, how, and where the spoliation occurred. Do not give up until you get answers.

Courts are given broad discretion for imposing sanctions. The jury charge on spoliation is a powerful tool at trial, especially in closing argument. Do everything you can to lay the factual basis to allow the judge to grant you the spoliation charge.

We are hopeful this Alabama Spoliation Guide for Lawyers was helpful to you and can help you better serve your clients.