NEWS & ARTICLES

FROM BARBER BRIEFS E-NEWSLETTER · FALL 2011


Motivation Is Irrelevant: Don’t Throw Away Potential Evidence

Ken McCulloch
Before or during a lawsuit parties cannot destroy, hide, or alter evidence that is relevant to a lawsuit. Doing so is known as spoliation of evidence, which Arkansas courts have defined as the intentional destruction of evidence. If a person intentionally destroys evidence, courts will allow a jury to draw a negative inference that the evidence was unfavorable to the person that destroyed it. In other words, the jury can assume that the person destroyed the evidence because it was harmful to his case.

A person can intentionally destroy evidence without having an ulterior motive like suppressing the truth. For example, a person can throw away an object because he no longer needs it without intending to hide it. If this was evidence that could be used in a lawsuit, is this spoliation? Is the jury permitted to assume that the person who throws out a useless object did so to hide the truth? Or should it first be proven that the person acted in bad faith?

The Arkansas Supreme Court recently answered this question in Bunn Builders, Inc. v. Womack. The court said that it does not have to be proven that the person acted in bad faith before a jury can be told that it can draw a negative inference from the destruction of evidence. In other words, if the destruction of evidence was not an accident, the jury can go ahead and assume that it was intentionally destroyed to hide the truth. The person’s motivation is irrelevant.

In 2004, Bunn Builders hired Womack to paint its office building in Arkadelphia. Womack covered oak wall paneling with lacquer and left for the evening. Early the next morning, a fire broke out. Bunn Builder’s insurance company, EMC, paid for the damages and then pursued an investigation of the fire’s cause. Investigators recovered a halogen lamp used by Womack and preserved it for testing. Womack’s insurance company, Farm Bureau, then contacted EMC and requested to be present for any testing of the lamp. EMC responded that it did not plan to do any destructive testing and that the electrical components and tools had been eliminated as a possible cause of the fire. However, the investigators later submitted a report identifying the lamp as the probable source, noting that it had been left ‘on’ (the lamp did not have an on or off switch and was found plugged into an electrical receptacle).

Based on the report, EMC sent Farm Bureau a letter stating that it planned to recover the insurance money from them because the fire was Womack’s fault. However, the letter failed to mention the lamp being left ‘on’ next to a freshly lacquered wall as the cause. At some point, EMC told its independent electrical engineer that he could destroy the lamp. After the destruction, a letter was sent to Farm Bureau, identifying the lamp as the probable ignition source of the fire. EMC eventually admitted that it no longer had the evidence, but claimed that it inadvertently ordered the destruction to avoid continued storage charges.

At trial, the court agreed that Bunn Builders had a duty to preserve the lamp for trial, but that the motivation for destroying it was unclear. While the judge denied Womack’s request to dismiss the case, he granted the request to instruct the jury on spoliation. The jury returned a verdict for Womack. On appeal, Bunn Builders argued that the court was wrong to instruct the jury on spoliation because Womack failed to prove that it had destroyed the evidence in bad faith. Bunn Builders relied primarily on the Eighth Circuit Court of Appeal’s requirement that a party must show bad faith before the court will give a spoliation instruction to the jury. The Arkansas Supreme Court disagreed and held that a specific finding of bad faith was not necessary before instructing the jury that they could draw a negative inference when a person intentionally destroys evidence. The simple fact that EMC intentionally destroyed the lamp, regardless of why, was spoliation of evidence.

The moral of the story is don’t destroy, discard, or lose any objects or materials that were involved in an accident resulting in bodily injury or property damage.  If you’re sued later you won’t have these objects to assist you in defending a case and could be subjected to the jury finding against you even though the discarded items would have helped your case if they were  preserved.  Don’t let your perceived motivation hurt your case, let the evidence speak for itself – by preserving it.


R. Ken McCulloch
leads the Construction Law Practice Group at the Barber Law Firm. He can be reached at rkmcculloch@barberlawfirm.com.   See More Articles > > >