Is Spoliation a Cause of Action?

In Nevada, no? The question mark is not a typo.

The Supreme Court of Nevada seemed clear when it wrote “we decline to recognize an independent tort for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party.” Timber Tech Engineered Bldg. Prods. v. Home Ins. Co., 118 Nev. 630, 633, 55 P.3d 952, 954 (2002).

[T]he benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.

Id.

Then I read Contreras v. Am. Family Mut. Ins. Co., 2013 U.S. Dist. LEXIS 10590 (D. Nev. Jan. 24, 2013). Plaintiffs were in a rollover accident and alleged it was due to a defective car and tire. American Family (“AmFam”) was their insurance carrier. After the accident, AmFam took possession of the car and tire. Plaintiffs and AmFam both filed product defect cases against the car and tire manufacturers. “[D]uring discovery American Family revealed that it misplaced and could not locate the tire from its storage facility.” Oops. Apparently the underlying suits were dismissed in their entirety.

Then Plaintiffs sued AmFam and AmFam moved to dismiss arguing spoliation is not a cause of action in Nevada.

However, the Timber Tech decision left open the possibility to pursue a negligence claim based on spoliation. Id. at 954-955 (dismissing negligence cause of action due to failure to allege the existence of a duty because the existing preservation of evidence agreement was not entered into between defendants and plaintiff). Some California courts refuse to consider a negligent spoliation of evidence cause of action, deeming it to be an end-run around settled California law prohibiting spoliation causes of action. See Farmers Ins. Exch. v. Superior Court, 79 Cal. App. 4th 1400, 1404-07, 95 Cal. Rptr. 2d 51 (Cal. Ct. App. 2000). Notwithstanding contrary California law, the implicit acknowledgment of a negligence-based duty to preserve evidence in Timber Tech controls the Court’s analysis here. Timber Tech appears to recognize a spoliation cause of action where the alleged tortfeasor expressly promised to preserve evidence, a theory approved of by at least one California court. See Cooper v. State Farm Mut. Auto. Ins. Co., 177 Cal. App. 4th 876, 892, 99 Cal. Rptr. 3d 870 (Cal. Ct. App. 2009) (“Whether based on a contract principle of promissory estoppel or a tort theory of a voluntary assumption of a duty, plaintiff relied to his detriment on [defendant’s] promise to preserve the tire and/or voluntary assumption of a duty.”)

Here, Plaintiffs properly pled a negligence cause of action by alleging that Defendants owed Plaintiffs a duty to preserve evidence during litigation. While Plaintiffs may not simply bootstrap a spoliation of evidence claim onto a negligence cause of action, they are entitled to pursue a tort theory approved by Timber Tech and Cooper based on the facts presented in the FAC.

What does this mean? Since this was a motion to dismiss, my guess is the court gave Plaintiffs an opportunity to prove they had an agreement with AmFam that was breached. If so, then the cause of action is a breach of contract and not spoliation. Still, given Timber Tech‘s seemingly unequivocal language, this seems like the perfect situation to ask to invoke NRAP 5.