shutterstock_1033181662In an earlier posting, I talked about spoliation of evidence.  This posting discussed first-party spoliation of evidence which is where a party in a lawsuit has destroyed or lost potentially important documents or evidence.  This type of spoliation of evidence does not give rise to an affirmative claim, but could be addressed by the trial court imposing sanctions or giving the devastating adverse inference jury instruction. 


There is an affirmative claim for third-party spoliation of evidence.  This is where a third-party–not a party to the underlying lawsuit–negligently destroys evidence that is critical to the plaintiff’s lawsuit against a defendant.  This affirmative claim, however, does not accrue until the  plaintiff’s lawsuit against the other defendant is resolved.  For instance, in a recent case I discussed, a plaintiff was injured during his employment.  While he had a worker’s compensation claim underway, he filed a premise liability lawsuit.  During this case, he discovered that his employer and its worker’s compensation insurance carrier destroyed or lost a video of the accident that caused his injury.  The plaintiff believed this video would have supported his premise liability claim and pursued a third-party spoliation of evidence claim.  The appellate court held this third-party spoliation claim should be abated / stayed or dismissed until the plaintiff’s underlying premise liability claim is resolved


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