Emory Law Journal

Fall, 1987

*1085 TRUTH AND UNCERTAINTY: LEGAL CONTROL OF THE DESTRUCTION OF EVIDENCE

Lawrence B. Solum [FNa]

Stephen J. Marzen [FNaa]

Stephen J Marzen

INTRODUCTION

When Oliver North and Fawn Hall systematically shredded the documentary record of North's involvement in the Iran-contra funding scandal, the search for truth was clouded by uncertainty. [FN1] In such situations, the legal systems deploys a complex set of strategies that deal with the uncertainty in three ways: by attempting to restore accuracy, by compensating those whose legal rights are impaired by evidence destruction, and by punishing those who engage in such destruction.

Despite a long history and recent doctrinal ferment, courts continue to disagree about the contours of doctrines controlling destruction of evidence. These doctrinal disagreements reflect an underlying confusion about truth and uncertainty--conceptual confusions which result in corresponding disagreements about the proper functions of doctrines controlling destruction of evidence. By identifying these confusions, this Article facilitates development of a coherent legal response to destruction of evidence.

This Article analyzes legal controls on evidence destruction in more or less six parts. Part I describes the rich variety of authority to control evidence destruction. In civil cases, the spoliation inference, discovery sanctions, tort liability, and criminal obstruction of justice statutes provide sanctions against destruction of evidence. In criminal cases, defendants face fines and imprisonment from federal and state evidence destruction and contempt statutes. Also in criminal cases, prosecutors who destroy exculpatory *1086 evidence risk dismissal of indictments under the process clause, the Jencks Act, Federal Rule of Criminal Procedure 16, and court's supervisory power. In addition, attorneys may breach professional standards if they participate in destruction of evidence or advise their clients to do so.

Part II discusses policy considerations weighing for and against control of evidence desctruction. It concludes that strict controls being developed by many courts are justified. In particular, truth and fairness to litigants support restrictions on evidence destruction even though the inefficiency of wide-ranging document preservation and concern for individual rights and privacy suggest boundaries beyond which destruction of evidence should not be controlled.

Parts III and IV develop the attainable objectives for legal controls on evidence destruction. Part III assumes that the legal system seeks only to restore the accuracy of individual legal proceedings. It points out the difficulty of decisionmaking under uncertainty and examines the conceptions of truth which underlie judicial thinking about destruction of evidence.

Part IV explains that legal controls on evidence destruction not only can restore accuracy but can compensate victims and punish evidence destruction. Examples from spoliation doctrine, civil discovery sanctions, and prosecutorial destruction of evidence illustrate the differing results to which the functions of accuracy, compensation, and punishment can lead.

Parts V and VI integrate doctrines and functions. Part V reviews routine document destruction programs and concludes that they should not insulate spoliators from legal controls otherwise applicable to destruction of evidence.

Part VI argues that the doctrinal isolationism characterizing development of evidence destruction doctrines in the past should end and that courts should begin the reasoned elaboration of a coherent legal approach to destruction of evidence.

I. AN OUTLINE OF CURRENT DOCTRINE

One of the most striking facts about the legal control of destruction of evidence is the sheer variety of forms that control has assumed. This section surveys the techniques developed in civil litigation, the special legal *1087 tools used in criminal proceedings when evidence is destroyed by the accused or by law enforcement officials and the growing body of law concerning professional ethics. This opinionated survey is designed to provide a clear sense of existing doctrine and to highlight the confusion that characterizes existing law.

A. Civil Litigation

In the context of civil litigation, three legal doctrines are used to control the destruction of evidence: the spoliation inference, civil discovery sanctions, and the newly created spoliation tort. There is also a theoretical possibility of criminal prosecution for the destruction of evidence in civil litigation, but research reveals no reported case of such a prosecution.

1. The Spoliation Inference

The first strategy is the spoliation inference. Since the early seventeenth century, the legal maxim omnia praesumuntur contra spoliatorem (all things are presumed against a wrongdoer) [FN2] has expressed a rule that allows the fact finder to draw an unfavorable inference against a litigant who has destroyed documents relevant to a legal dispute. [FN3] The inference is of ancient lineage, [FN4] but courts and commentators continue to disagree *1088 about the basic contours of the spoliation doctrine. This section explores the elements of the inference, the manner in which these elements may be proved at trial, the effect of the inference, and the division of responsibility between judge and jury regarding the inference.

The basis for this inference is that the destruction of evidence gives rise to an inference that the spoliator was conscious of her guilt and believed that the destroyed material would have been unfavorable. [FN5]

(a) Elements of the Spoliation Inference

Judicial controversy and scholarly commentary have focused on the elements required to support the spoliation inference--whether the destruction must be intentional; whether the defendant may explain or rebut the inference; whether third-party action be imputed to a party who did not personally destroy evidence, and whether the conduct of the victim affects the inference.

(i) The Intentionality Requirement

Commentators agree that some form of intentionality is a prerequisite to drawing the spoliation inference. [FN6] There are disagreements, however, about the nature of this requirement. Many courts have held that spoliation requires an intentional act of destruction [FN7] and that mere negligence is insufficient. [FN8] Some courts impose a more stringent intentionality element *1089 by requiring proof of fault [FN9] or "bad faith". [FN10]

(ii) Explanation and Rebuttal

Many courts permit a spoliator to rebut a spoliation inference. [FN11] The courts have accepted explanations that reveal the spoliation to have been beyond the alleged spoliator's control and thus lacking intentionality or bad faith, as in the case of a ship's log that was lost when the ship sunk. [FN12] Courts have also accepted explanations that "intentional" destruction was not intended to deprive the court of evidence. Accordingly, courts have held neither erasures in a logbook to permit corrective entries to be made [FN13] nor destruction of handwritten notes after they were converted into typewritten form [FN14] to support an adverse spoliation inference. These decisions make clear that spoliator may destroy potential evidence, but cannot "deprive the court of evidence."

Some courts also permit the inference to be rebutted if the document is destroyed in reliance on the advice of counsel. [FN15] Perhaps reliance on counsel negates the implication of consciousness of guilt, but the deliberation associated with seeking advice indicates that the act was intentional.

Another explanation is that the spoliator acted to prevent his adversary from disclosing information about his business, such as trade secrets. [FN16] *1090 This concern justifies court sealing or an evidentiary privilege limited to trade secrets; it does not, however, justify unilateral destruction based on the party's own determination that disclosure of trade secrets is imminent.

Finally, courts have held that the inference is rebutted by evidence that conclusively disproves the underlying claim. [FN17] In addition, testimony that the document was irrelevant may rebut the inference. [FN18] In a similar vein, one treatise contends that the inference cannot operate when there is positive evidence of the contents of destroyed documentary evidence. [FN19]

(iii) Party Limitations

The spoliation inference is usually limited to parties to the litigation. [FN20] Hence, destruction of evidence by third parties does not give rise to the inference. This result is sometimes rationalized as requirement of the hearsay rule. The theory is that conduct constituting an admission is like hearsay, and that an exception to the customary inadmissibility of hearsay is available against party opponents and not against litigants generally. [FN21]

(iv) Considerations of Timing

The spoliation sometimes can be rebutted by evidence that the document was destroyed before litigation began, [FN22] and one court has indicated in dicta that whether destruction occurred in advance of a request for the documents is one factor weighed against drawing the spoliation inference. [FN23] However, the Alabama Supreme Court recently ruled: "Proof may be made concerning a party purposefully and wrongfully destroying *1091 a document which he knew was supportive of the interest of his opponent, whether or not an action involving such interest was pending at the time of the destruction." [FN24]

(v) Victim's Behavior

The possible effects of the behavior of the victim of spoliation also determine whether a court will draw the inference. One court has held that the plaintiff's failure to use discovery devices that could have prevented the destruction of evidence should weigh heavily against drawing the spoliation inference. [FN25] It is the author's position, however, that the failure to invoke discovery mechanisms should not bar the spoliation inference. The victim of spoliation may have legitimately expected that the evidence would not be intentionally destroyed once the spoliator had notice of or could reasonably foresee the possibility of suit. The legitimacy of the victim's expectations gain added force from representations made during the course of discovery, agreements between counsel, discovery plans, and preservation orders. And if the spoliation was negligent, rather than intentional, a case can be made that the failure of the victim to avail himself of discovery mechanisms earlier is itself negligent conduct, and that the costs of destruction ought not fall entirely on the spoliator.

(b) Problems of Proof

The burden of persuasion to establish destruction should rest on the party that requests the inference. Absent proof that destruction of evidence has occurred, there is no reason to require the alleged spoliator to prove a negative--that he has not dstroyed evidence. Destruction may, however, be established in many cases by circumstantial evidence. [FN26] Proof that evidence once existed, that it is no longer available, and that it would ordinarily have been retained should shift the burden of persuasion to the defendant to establish that the evidence was not destroyed.

The allocation of the burden of persuasion is a more difficult problem with respect to the question of the relevance (or probative value) of the *1092 destroyed material. If the victim of spoliation were required to demonstrate the content of the destroyed evidence, the inference would be meaningless. If a victim can meet that burden, the inference seems unnecessary. On the other hand, if the burden of demonstrating the irrelevance of the destroyed matter were placed on the spoliator, then virtually every lawsuit could turn into a spoliation case: all potential litigants destroy things every day, e.g. by throwing things in the trash. A possible compromise would be to require the victim to meet an initial burden of demonstrating that there is a substantial likelihood that the destroyed matter had probative value; the burden would then be shifted to the spoliator to establish that the destroyed material was not probative.

Proof of intentionality should also be inferable from circumstantial evidence. Courts seem to agree. In Carr v. St. Paul Fire & Marine Insurance Co. [FN27] a negligence action for wrongful death against a hospital, the relevant records were destroyed by the hospital. Allowing the jury to draw the spoliation inference, the trial judge reasoned: "It seems highly unreasonable that the findings of the physical condition of a person examined by the emergency room employees would be destroyed." [FN28] If courts did not allow the spoliation inference to be inferred from circumstantial evidence, many meritorious claims would fail.

Courts disagree about the effect of the spoliation inference. Some courts hold that the spoliation inference by itself is sufficient to justify a verdict against the spoliator. [FN29] Other courts believe that the only inference to be drawn is that the destroyed records would not provide affirmative evidence in favor of the spoliator. [FN30] The bulk of judicial opinion falls between these extremes.

*1093 (d) Procedural Questions

The spoliation inference implicates the division of decisionmaking power between judge and jury. Some jurisdictions place great reliance on the jury in spoliation cases, but in others, courts have responded to fears of jury overreaction by creating threshold burdens that parties must meet to put the spoliation inference to the jury.

The spoliation inference constitutes a question of fact [FN31] and hence is for the jury. [FN32] Indeed, some jurisdictions leave the effect of the inference to the jury as well. [FN33] Commentators fear, however, that juries will be unduly influenced by destruction of evidence and will unfairly penalize litigants by means of the spoliation inference. [FN34] These commentators also question the capacity of instructions on the scope of the inquiry to control the jury, particularly in cases in which the conduct of the spoliator was outrageous. [FN35]

A review of appellate decisions does not indicate that juries act unreasonably. In special circumstances where jury overreaction is likely several control mechanisms exist. One possible jury-control device is summary judgment. Because some courts hold that the spoliation inference does not provide affirmative proof on summary judgment, [FN36] this device can keep the spoliation inference from the jury. Another mechanism is embodied in the requirement that certain threshold requirements be met before the spoliation question can be submitted to the jury. [FN37] One court has suggested that the spoliation issue be submitted to the jury only when there is substantial evidence that the evidence existed; that it was in the control of the party; that the evidence would have been admissible at trial; and that *1094 destruction of the document was intentional. [FN38] Another court adds that the destroyed evidence must have contained material aiding the party seeking the inference and that party must show that the document was destroyed in bad faith. [FN39] A final possible jury-control mechanism is a ruling that evidence of spoliation is inadmissible for the reason that the potential prejudicial effect outweighs the probative value of the evidence. [FN40] There is little indication, however, that courts are pursuing that option with any vigor.

2. Civil Discovery Sanctions

The second strategy for controlling the destruction of evidence is the civil discovery sanction. Discovery sanctions resemble the spoliation inference in many significant respects, with the notable exception that discovery sanctions are imposed by a judge before trial. While the effect given by the jury to the spoliation inference cannot be known before trial, litigants may be apprised of sanctions at any time during the discovery process or thereafter.

(a) The Source of the Sanctioning Power

Although trial judges frequently levy discovery sanctions for evidence destruction, [FN41] the source of their sanctioning power is not entirely clear. While Rule 37 of the Federal Rules of Civil Procedure and its state counterparts authorize sanctions in expansive terms, [FN42] that power is predicated on the prior existence of a court order. [FN43] Prudent litigants, of course, will move for a document preservation order at an early stage of the litigation. [FN44] *1095 Courts help them out by taking a relaxed attitude toward what qualifies as a pre-existing order. [FN45] But prudence and liberal construction go only so far, and it is difficult to explain how Rule 37 supports sanctions when there is no court order outstanding [FN46]--such as when documents have been destroyed before suit has been filed. [FN47]

For destruction of evidence beyond the reach of Rule 37, therefore, courts have found it necessary to invoke authority existing outside the rules of procedure. They have found it in a doctrine known as inherent power. According to the United States Supreme Court, "[t]he inherent powers of federal courts are those which are necessary to the exercise of all others." [FN48] This amorphous and all-pervading power, which the Court has cautioned "must be exercised with restraint and discretion," [FN49] has been invoked by several lower courts to justify imposition of sanctions on *1096 parties responsible for evidence destruction. [FN50]

(b) The Sanctioning Authority in Practice

(i) Intentionality

In the vast majority of cases, courts have imposed sanctions for willful destruction of evidence. [FN51] In these cases, the party responsible for the destruction *1097 intentionally destroyed something that was or was likely to be evidence in a lawsuit.

Notwithstanding the fact that evidence destruction in the reported cases is generally perpetrated with a high degree of intentionality, many courts have condemned negligent destruction of evidence. [FN52] The rules of law adopted by these courts often forbid destruction when the litigant "should have known" that the documents or other tangible matter would constitute evidence or lead to the discovery of admissible evidence. [FN53] Courts have also sanctioned destruction of evidence in violation of a court order, [FN54] an agreement of the parties, [FN55] or even a document production request, [FN56] without requiring intentionality. The facts of the cases often contain strong circumstantial evidence -- or at least judicial suspicion -- that the evidence destroyer knew that the shredded paper could have been used against him in court, even if there was no direct evidence exposing his or her state of mind. [FN57] In light of these fact patterns, the extant case law would not support sanctions when destruction is inadvertent or when a document's relevance to litigation cannot reasonably be foreseen.

*1098 (ii) Stage of Proceedings

Although sanctions have typically been imposed for destruction of evidence after suit has formally begun, [FN58] some courts have announced rules condemning, [FN59] or have sanctioned, [FN60] evidence destruction completed prior to filing of the complaint. The doctrine forbidding courting of legal impediments clearly governs obstructive acts committed before suit is filed. [FN61] The doctrine, which prevents prospective litigants from squirreling away documents into a foreign jurisdiction from whence they cannot be removed, must of necessity govern actions taken before litigation begins. Courts have similarly condemned record-keeping practices--instituted long before any concrete legal action arises--which prevent location of relevant documents in company files.[FN62] Consistent with these principles, it *1099 is not surprising that courts have sanctioned destruction of evidence prior to the filing of a lawsuit when litigation was reasonably foreseeable.

(iii) Flexibility in Choice of Sanctions

The fact that federal and state trial courts are extending sanctions for evidence destruction upon ever-weaker showings of intentionality and to ever- earlier stages in litigation (or, in some cases, even before litigation has formally commenced), does not mean that motions for sanctions will soon replace the trial as the "main event." With courts' greater recognition of their power to sanction evidence destruction has grown the understanding that not all evidence is a "smoking gun," and that some destruction is inadvertent. The sanctions imposed must be commensurate with the importance of the evidence and the willfulness of the destructive act.

To make this choice, [FN63] trial judges have available to them a wide range of sanctions. These sanctions may be divided into two classes, monetary sanctions and nonmonetary sanctions. Nonmonetary sanctions range from issue- related sanctions, by which courts deem specific facts or legal conclusions admitted or bar proof as to particular issues, [FN64] to entry of default judgments and dismissals of complaints. [FN65] Our discussion of the possible *1100 effects of the spoliation inference reveals the wide range of possibilities for issue-related sanctions. [FN66] Monetary sanctions, which often accompany and complement nonmonetary sanctions, typically award the cost of attempted discovery and attorney's fees on the sanctions motion. [FN67] We will examine the range of sanctions and the purposes they serve in greater detail below when we examine the various functions of controlling the destruction of evidence. [FN68]

3. The Spoliation Tort

The third strategy pursued by innovative courts in a growing number of states is the new tort for spoliation of evidence. [FN69] In 1984, in the case of *1101 Smith v. Superior Court, [FN70] the California Court of Appeal first created an explicit new tort for the "intentional spoliation of evidence." [FN71] Smith held that because "a prospective civil action . . . is a valuable 'probable expectancy'," [FN72] the plaintiffs were entitled to "legal protection" against "alleged intentional spoliation of evidence even though their damages cannot be stated with certainty." [FN73]

(a) Intentional Spoliation

The parameters of California's new tort for intentional spoliation of evidence remain ill-defined. Although Smith received nationwide attention in the legal press, [FN74] the contours of the new tort are still uncertain. Interestingly, the intentional spoliation tort did not reach trial even in Smith. Soon after the appellate ruling came down, the defendant informed plaintiffs' counsel that the evidence had reappeared and within weeks settled for a large sum of money. [FN75] Thus, many questions regarding the new tort remain unanswered.

One open question is the scope of liability. Given the allegations of the plaintiffs' complaint in Smith, it is clear that the tort reaches destruction of evidence before suit is filed. [FN76] The complaint, however, also alleged that defendant had promised to preserve the evidence for trial. Focusing on this fact, some commentators have urged that the new tort be limited to cases in which the prospective parties have agreed to preserve evidence pending institution of legal proceedings. [FN77] In Spano v. McAvoy, [FN78] one of the few reported citations of Smith to date, a federal district court adopted this narrow reading in holding that a plaintiff in a § 1983 action has no "legitimate claim of entitlement" to police department tape recordings under *1102 New York law. Although the Spano court conceded that "torts when committed by public officials may give rise to § 1983 claims," [FN79] it distinguished Smith on the ground that the defendant in Smith "had previously agreed to keep certain evidence." [FN80] The Spano court's reading of Smith drastically circumscribes the new tort, because prudent defense counsel can avoid liability simply by refusing to agree to opposing counsel's request to preserve documents and other physical evidence before trial.

The significance attributed by the Spano court to the agreement in Smith has no basis in the opinion itself. Smith's only affirmative foundation for the spoliation tort consisted of a straightforward analogy to the tort of intentional interference with prospective business advantage. [FN81] Likening the "opportunity to win" a lawsuit to "a 'reasonable probability' that a contract or profit would have been obtained," the court "conclude d that a prospective civil action in a product liability case is a valuable 'probable expectancy' that the court must protect from the kind of interference alleged herein." [FN82] Tort liability, of course, is nonconsensual. Any expectations created by such liability have no relationship to voluntary undertakings. Smith should not be limited to cases in which custodians of potentially relevant evidence agree to preserve the matter until trial. [FN83]

An even more troublesome aspect of Smith is the speculativeness of the damages. Is the jury to hear expert legal testimony regarding plaintiffs' probability of success and award damages equal to the amount that plaintiffs would have recovered if the evidence had not been destroyed? [FN84] One *1103 California lawyer asserted that " y ou could be asking the jury to quantify the unquantifiable." [FN85]

The Smith court's discussion of the imprecision inherent in damage calculations of this sort reveals much about the nature of the spoliation tort. On a purely argumentative level, Smith adequately disposed of defendant's contention with the twin observations that (1) courts only expect plaintiffs "to prove damages with as much accuracy as reasonably possible," [FN86] and (2) " t here are many interests which the law seeks to protect wherein damages cannot be proved with certainty" (the economic relations torts are prime examples). [FN87] Quoting the plaintiffs' complaint, the Smith court noted that plaintiffs had "alleged only that the loss or destruction of the physical evidence had 'significantly prejudiced' their case . . . . It may be that the Smiths have pleaded their damages with as much certainty as the nature of the claim will allow." [FN88]

Since Smith stressed that the "'tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty,"' [FN89] the principal function of the tort may be to compensate for destruction of evidence whose probativeness is not known rather than restoring the accuracy of the original proceeding. For example, if a plaintiff sues for violation of the antitrust laws and the defendant destroys all purchase, sale, and inventory records, a court would find it difficult to let the case go to the jury or impose an issue-related sanction because it is not clear what, if anything, the destroyed documents would have proved. [FN90] In this case, no inference or issue-related sanction can substitute for the destroyed evidence. At most, a court can compensate the victim of the destroyed evidence and deter such destruction in the future.

Smith recognized, at least implicitly, that victims of evidence destruction *1104 deserve compensation and that spoliation should be deterred even if the original factfinding is destroyed beyond repair. This intuition is evident in the court's discussion of the functions a tort remedy would serve. Quoting Dean Prosser, the court rejected defendant's argument that the California obstruction of justice statute preempted the field with the comment that "[a] criminal prosecution is not concerned in any way with compensation of the injured individual against whom the crime is committed . . . . The civil action for a tort, on the other hand, is commenced and maintained by the injured person himself, and its purpose is to compensate him for the damage he has suffered, at the expense of the wrongdoer." [FN91] Later, the court pointed out that " d eterrence is an important policy consideration for allowing the maintenance of suits when damages cannot be shown with certainty." [FN92] To deny recovery for evidence destruction because damages are uncertain would allow the spoliator to profit from his own wrong. [FN93] The genius of Smith is that compensation, albeit inexact compensation, and deterrence can be effected even if accuracy is irretrievably lost.

(b) Negligent Spoliation

In June of 1985, the California Court of Appeal reaffirmed and extended Smith. [FN94] Velasco v. Commercial Building Maintenance Co. advanced the spoliation tort beyond Smith in two ways. First, Velasco clarified that negligent destruction gives rise to a claim for relief. [FN95] Second, Velasco extended liability to third parties. [FN96]

The plaintiffs, Pedro Velasco and his son, sustained personal injuries when a bottle exploded. They took the remnants of the bottle to an attorney who placed the fragments in a paper bag which he left on the top of his desk at the end of the day. Apparently, the bag was missing the next *1105 day. The Velasco's complaint alleged that the defendant, Commercial Building Maintenance Company, was responsible for the loss because its agents carelessly disposed of the paper bag. The defendant's demurrer was sustained by the trial court, presenting on appeal the issue of whether plaintiffs had stated a cause of action for decision by the appellate court. [FN97]

The Velasco court observed that the California Supreme Court had come close to recognizing the tort of negligent destruction of evidence in Williams v. State of California. [FN98] In Williams, the plaintiff failed to state a cause of action against a state highway patrol officer who failed to affirmatively act so as preserve evidence at an accident scene. The California Supreme Court rejected a cause of action for failure to act to preserve evidence in this context, but recognized the possibility of an action for negligent destruction of evidence. [FN99] The Velasco court concluded that the reasoning of Williams and Smith supported the creation of a tort for negligent destruction of evidence.

The Velasco court analogized between the elements of the new tort and the elements of the tort of negligent interference with prospective economic advantage, [FN100] including the requirement that the harm to the plaintiff be foreseeable. [FN101] The court concluded that on the facts before it, no cause of action had been stated because " a reasonably thoughtful maintenance employee should not be expected to believe that he or she would destroy valuable evidence which might decrease a client's chance of recovery in a product liability action when that employee sees on an attorney's desk an unlabeled bag containing a broken bottle." [FN102]

The reasoning of Velasco is sound. As between an innocent victim and *1106 a negligent spoliator, the spoliator should pay the price of careless conduct. This rule is supported by the considerations of fairness and deterrence that underlie modern negligence law. Moreover, a negligence rule may allow the balancing of society's interest in the preservation of potential evidence against the costs of retention. If retention of the evidence would be more costly than the potential benefit to the victim of spoliation, the conventional negligence rule should not attach liability to the destruction. Together, Smith and Velasco provide a powerful alternative to the spoliation inference and civil discovery sanctions for the control of destruction of evidence relevant to civil litigation.

4. Criminal Sanctions for Destruction in Civil Litigation

Federal and state obstruction of justice statutes, described in section B, below, [FN103] are not limited to destruction of evidence in criminal proceedings. Few cases address this issue, but there is limited authority for the proposition that destruction of evidence in civil litigation may be punished by criminal sanctions, at least if the evidence was subject to a court order requiring their production. [FN104]

The threat of criminal prosecution for evidence destruction in civil litigation, however, appears to be more theoretical than real. Our research revealed no criminal convictions for destroying evidence in civil litigation. [FN105] Indeed, we have discovered only one reported government investigation of document destruction in a private lawsuit. [FN106]

Federal criminal sanctions for destruction in private suits are of inherently limited value even if employed with great vigor. Because sanctions are meted out in satellite proceedings, they do nothing to restore the accuracy*1107 of the original factfinding. Moreover, fines and imprisonment do nothing to compensate the plaintiff in the original civil suit for his loss.

At most, criminal sanctions could deter evidence destruction in civil litigation. The apparent disinterest of United States Attorneys in evidence destruction in civil suits, however, renders the obstruction of justice statutes rather toothless against such misconduct. Perhaps increased reporting would trigger government prosecutions. But prosecutors may believe that prosecution of spoliation in private suits is ordinarily a misallocation of scarce prosecutorial resources. [FN107] Even if prosecutors became interested in private evidence destruction, the effectiveness of this form of criminal sanction would remain open to question.

With respect to the states, there is wide variation in the applicability of penal sanctions to the destruction of evidence in civil cases. Sixteen states have statutes that do not apply --even in theory--to most types of destruction of evidence in civil litigation. Of the sixteen, seven states have statutes which prohibit the destruction of evidence only if it is relevant to a criminal proceeding or investigation. [FN108] Two states have statutes that would rarely apply in civil litigation. [FN109] Seven states have no statute at all. [FN110]

*1108 Thus, at both the state and federal level, there is considerable doubt about the efficacy of criminal sanctions as mechanism for controlling the destruction of evidence relevant to civil litigation. These issues are explored in more detail in the following section.

B. Criminal Proceedings

In theory, and occasionally in practice, the spoliation inference can be used to control the destruction of evidence by either the prosecution or the defendant in criminal proceedings. The primary focus of doctrinal development in this area, however, has been on strategies that are targeted at only one of the two opposing parties to a criminal prosecution. We begin with legal control of evidence destruction by defendants and then consider control of such destruction by the prosecution.

1. Destruction by Criminal Defendants

The primary tool to control the destruction of evidence by criminal defendants has been the obstruction of justice statute. Our sketch begins with the federal statute; we then briefly survey state law.

(a) The Federal Obstruction of Justice Statutes

Three sections of title 18 of the United States Code -- sections 1503, 1505, and 1510 -- create mutually exclusive criminal offenses for interfering with judicial, administrative, and legislative proceedings and investigations. [FN111] Although none of these three sections is designed specifically to deal with destruction of evidence, their broad language, combined with the pressing need to punish individuals and entities guilty of criminal acts and who destroy evidence against them, has led courts to interpret these statutes to proscribe destruction of relevant evidence.

Because these statutes authorize courts to mete out fines of up to $5,000 *1109 and impose prison sentences of up to five years in duration, [FN112] they provide the most severe sanctions available for destruction of evidence. Taken together, these three statutes forbid the destruction of evidence after learning of the existence of a government inquiry but before contact by officials, in the course of voluntary cooperation with government authorities, and after service of formal process (such as a subpoena) requiring that documents be produced.

(i) The General Structure

Section 1503 is the general obstruction of justice statute. Its general catch-all language, often referred to as the "omnibus" clause of section 1503, punishes "whoever . . . corruptly or by threats or force . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice."