Personal Injury, Probate, Employment, & Complex Litigation


Destruction of Evidence

One of the most commonly held fears a client will have when the person they are suing controls all of the evidence is that the other person will simply destroy the evidence.

While it is true that there are discovery methods to get to the items sought, if the other side simply denies it exists, what do you do?

While you cannot file a separate cause of action against them for failing to produce or destroying the evidence (See, Cedars-Sinai Medical Center v. Superior Court (1998) 954 P.2d 511.), there are still a lot of things you can do to make the opposition pay for interfering with a judicial proceeding.

For example, if you request that they produce an item in discovery, and instead of producing the item, they destroy it, that is likely in violation of Code of Civil Procedure section 2023. Sanctions under that code provision include:

  • Monetary
  • Issue preclusion
  • Evidentiary
  • Terminating

While these sanctions seem small, the consequences can be enormous. If the court requires them to pay your legal bill while also preventing them from introducing contradictory evidence to your claims, well, that is an enormous victory for you. And while not likely, if the judge orders terminating sanctions, the case is over, you win.

Obviously the court does not take such allegations lightly, and you must have solid evidence in order to get the court to come around to your side, but if you have the evidence of their tampering of evidence, even if it is witness statements regarding the existence of the item, then you should file the motion, both to ensure that you get a fair trial, but also to ensure that the judicial system is not undermined.