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24 Sw. U. L. Rev. 123 (1994-1995)
Spoilation of Evidence in California

handle is hein.journals/swulr24 and id is 133 raw text is: SPOLIATION OF EVIDENCE
Melissa A. Bruzzano*
January 1994 marked the tenth anniversary of Smith v. Superior
Court,' the landmark case in which a California court first recognized
the tort of intentional spoliation of evidence. Spoliation is [t]he de-
struction, or the significant and meaningful alteration of a document
or instrument.2 Spoliation of evidence can occur in almost any type
of action, and it is not limited to physical evidence-documents can
be spoliated as well. This article was written as an informative guide
to both intentional and negligent spoliation of evidence.' It reviews
the evolution of the new tort and new theory,4 their legal bases, when
such actions should be brought, and how to avoid such actions.
The traditional remedies for spoliation of evidence include: (1) a
discretionary jury inference against the spoliator;5 (2) a charge of ob-
struction of justice under California Penal Code section 135;6 and (3)
various discovery sanctions pursuant to California Code of Civil Pro-
cedure sections 2023 and 2031.7 However, these traditional remedies
* Associate at Larson & Burnham in Oakland, California; B.S., Georgia Institute of Tech-
nology; J.D., University of San Francisco School of Law.
1. 198 Cal. Rptr. 829 (Ct. App. 1984).
2. BLACK'S LAW DICTIONARY 1401 (6th ed. 1990).
3. Over the past two years the author has been researching spoliation of evidence in civil
and criminal litigation. Although many legal publications, including magazines, law reviews,
newspapers, and treatises have discussed this area of the law, none has given an all encompassing
guide to California law on this subject. Thus, this article is intended to be a helpful guide to both
practitioners and students on the law of spoliation of evidence in California.
4. Negligent spoliation of evidence is not a new tort, it is a new theory within the tort of
5. CAL. EVID. CODE § 413 (Deering 1986); Walsh v. Caidin, 283 Cal. Rptr. 326, 329 (Ct.
App. 1991); Rodney L. Eshelman & John Kavanagh, Using Spoliation of Evidence in Products
Liability Cases, CAL. LIGATION, Fall 1992, at 36, 37.
6. Smith v. Superior Court, 198 Cal. Rptr. 829, 835 (Ct. App. 1984).
7. CAL. CIv. PROC. CODE §§ 2023, 2031 (Deering 1988 & Supp. 1994); Puritan Ins. Co. v.
Superior Court, 217 Cal. Rptr. 602 (Ct. App. 1985) (decided under the former discovery sanction

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