All truths are easy to understand once they are discovered; the point is to discover them.

—(Galileo Galilei, Italian astronomer, 1564-1642).

Of course, the way to get to the truth in a lawsuit is through discovery. Problems arise when discovery is thwarted by the loss or destruction of evidence. Counsel has more than one option when evidence is missing. Illinois law allows counsel to seek sanctions as a discovery violation. (An alternative is to file a tort claim regarding spoliation of evidence.)

This analysis makes no recommendations but simply addresses the possibility of sanctions for spoliation.

I. Why sanctions?

The first question to address is why a sanction would be available if the victim of spoliation has a cause of action under negligence law. Look no further than the Supreme Court Rules that allow for the discovery of documents, objects, or tangible things and require

. . . full disclosure regarding any matter relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking disclosure or of any other party, including the existence, description, nature, custody, condition, and location of any documents or tangible things. . . . The word ‘documents,’ as used in these rules, includes, but is not limited to, papers, photographs, films, recordings, memoranda, books, records, accounts, communication and all retrievable information in computer storage.

Supreme Court Rule 201(b)(1).

In addition, Supreme Court Rule 214 requires parties to produce documents, objects, and information requested to be tested, photocopied or sampled. Independent actions (usually subpoenas and depositions) can also be taken to ask one who is not a party for production of documents or objects.

Some records are supposed to be kept pursuant to law and may also be a basis for spoliation claims when a practitioner asks for the records and is advised they no longer exist. X-rays have to be kept for five years under the X-Ray Retention Act; the Hospital Licensing Act mandates ten years for medical records and allows for written notice to extend that; a dentist must keep patient records of dental work performed for ten years under the Illinois Dental Practice Act; and attorneys have obligations to keep some records under Supreme Court Rules. Companies may also have record retention policies that may make a failure to have records open for sanctions when a party has failed to keep them.

There are circumstances when destroying potential evidence before a request for its production was ever made can lead to sanctions even if there is no specific statute that required the records be kept. The Illinois Supreme Court noted that failure to produce relevant evidence because it was destroyed prior to filing a lawsuit can be sanctioned because of the duty a potential litigant owes to preserve relevant and material evidence. Shimanovsky v. General Motors Corporation, 181 Ill.2d 112, 692 N.E.2d 286, 229 (1998). The court reversed a dismissal of the case as a sanction for pre-suit destructive testing by the plaintiff, but agreed that a sanction was warranted as the sanction must consider the level of prejudice to the opposing party.

Failure to preserve evidence prevents the liberal discovery that is allowed. Where someone has made it impossible for the evidence to be reviewed by allowing its loss or destruction, the spoliation of the evidence can lead to sanctions both to punish the person who engaged in the spoliation and to provide fairness in the case.

Sanctions for discovery violations are imposed pursuant to Supreme Court Rule 219. There is no specific sanction that is mandated as sanctions are in the court’s discretion and the court must consider several factors, according to Shimanovsky:

(1) the surprise to the adverse party; (2) the prejudicial effect of the proffered testimony or evidence; (3) the nature of the testimony or evidence; (4) the diligence of the adverse party in seeking discovery; (5) the timeliness of the adverse party’s objection to the testimony or evidence; and (6) the good faith of the party offering the testimony or evidence. Shimanovsky at 124.

II. What are the possible sanctions?

Possible sanctions can be found in Supreme Court Rule 219. Rule 219(c) provides that remedies may be those that are just and include “among others”: (i) staying the proceedings until the order is complied with; (ii) barring the party from filing any other pleading relating to any issue to which the refusal relates; (iii) barring the offending party from maintaining a particular claim, counterclaim, third-party complaint, or defense relating to that issue; (iv) barring witnesses from testifying concerning that issue; (v) entering a default judgment or a dismissal against the offending party as to claims or defenses about which the issue is material; (vi) striking any pleading relating to that issue; (vii) where a money judgment is entered for fees or expenses, order interest to be paid for the period of pre-trial delay caused by the behavior.

The provision goes on to allow for “an appropriate sanction” that may include reasonable expenses incurred as a result of the misconduct such as attorney’s fees and allows where the misconduct is willful, permits a monetary penalty to be assessed and collected. The court must state the reasons and basis of any sanction imposed under 219(c).

III. What sanctions are usually applied for spoliation?

A. Barring the offending party from maintaining a particular claim, counterclaim, third-party complaint, or defense relating to that issue has been adopted as a sanction. Courts have adopted adverse inferences as sanctions. The court may decide all reasonable presumptions against the party who has destroyed evidence as was addressed in these cases.

Smith v. Tri-R Vending, 249 Ill.App.3d 654, 619 N.E.2d 172 (2d Dist. 1993);

Whittaker v. Stables, 339 Ill.App.3d 943, 791 N.E.2d 588 (2d Dist. 2001).

B. Precluding the presentation of evidence or barring testimony has been adopted by the court as a sanction for spoliation of evidence in the following:

Kambylis v. Ford Motor Co., 338 Ill.App.3d 788, 788 N.E.2d 1 (1st Dist. 2003);

Boyd v. Travelers Insurance Co. 166 Ill.2d 188, 652 N.E. 2d 267 (1995).

Graves v. Daley, 172 Ill.App.3d 35, 526 N.E.2d 679 (3d Dist. 1988).

C. The courts have also used entering a default judgment or a dismissal against the offending party. A cautionary note, though, as there are a number of cases where a court has been reversed for dismissal. Spoliation sanctions are no different from other Rule 219(c) sanctions in that the court should not deal more harshly than is warranted with the offender.

Peal v. Lee, 403 Ill.App.3d 197, 933 N.E.2d 450 (1st Dist. 2010);

Adams v. Bath & Body Works, Inc., 358 Ill.App.3d 387, 830 N.E.2d 645 (1st Dist. 2005), appeal denied 216 Ill.2d 679 (2005); and

Stringer v. Packaging Corporation of America, 351 Ill.App.3d 1135, 815 N.E.2d 476 (4th Dist. 2004).

IV. Instructing the Jury

Most lawyers think the “Failure to Produce Evidence or a Witness” instruction of the Illinois Pattern Jury Instructions for civil cases applies only to missing witnesses. Not so.

If the court determines that a party has failed to produce evidence and has no reasonable excuse for failing to do so, the court may determine it was not produced because the evidence would be unfavorable to that party’s position. In the court’s discretion, the failure of a party to produce evidence may lead to the giving of a jury instruction about the presumption.

This is one difference between choosing to seek sanctions for spoliation as opposed to pursuing a claim for spoliation. According to the Comments, “[t]his instruction is not intended to be an issue or burden of proof instruction dealing with spoliation.” Dardeen v. Kuehling et. al., 213 Ill.2d 329, 821 N.E. 2d 227 (2004).

The instruction has been used and approved in an action where defendant took photos of the plaintiff and did not produce them or the jail’s log book to defend plaintiff’s claim of police brutality. Debow v. City of E.St.Louis, 510 N.E.2d 895 (5th Dist. 1987). In Roeseke v. Pryor, 152 Ill.App.3d 771, 504 N.E.2d 927 (1st Dist. 1987), a hotel was being sued over plaintiff’s rape. It failed to produce a report made by its own night manager who had summarized what happened the night of the rape even though the hotel normally prepared and kept reports. IPI 5.01 was given.

Conclusion

Searching for the truth may actually be reaching for the stars. Attorneys and judges fervently hope that parties have kept the necessary items and documents so that a fair decision can be made on the merits of the case. Unfortunately, that wish is not always granted. Hopefully knowing the potential and most frequently used sanctions will assist counsel in evaluating what steps to take when faced with the loss or destruction of evidence. ■