Interference with Prospective Civil Litigation by Spollation of Evidence: Should Texas Adopt a New Tort.

Texas courts should adopt a tort for spoliation of evidence. Spoliation of evidence is the tampering with, interference with, loss of, or destruction of evidence. Spoliation of evidence is a serious legal problem because it increases a litigant’s difficulty in proving a cause of action or a defense. Evidence destruction may also increase litigation costs and cause the trial court to make factfinding errors. Texas courts should adopt the tort of spoliation of evidence because it compensates injured litigants and deters future acts of spoliation. Another reason for adopting the tort for spoliation of evidence is the inadequacy of alternative remedies. Currently, spoliators may escape criminal or civil sanctions by destroying evidence before the institution of legal proceedings. A spoliation tort, however, can close these loopholes by holding a spoliator liable for destruction of evidence even when legal proceedings have not yet begun. Finally, the recognition of a separate tort action for spoliation of evidence would lessen the ethical confusion faced by lawyers whose clients seek advice with respect to destruction of potential evidence. Although the Texas Penal Code does not prohibit persons from destroying evidence when an official proceeding is not pending or in progress, ethical confusion might arise if a client seeks the advice when future litigation is foreseeable. Adoption of the spoliation tort would help reduce this confusion because lawyers would advise their clients of the legal ramifications for the destruction of evidence when a potential lawsuit is foreseeable. Thus, Texas should adopt the tort of spoliation of evidence because the tort will compensate persons injured by the tortious conduct, deter future acts of wrongdoing, increase spoliator liability, and lessen the ethical confusion of lawyers