The Subrogation Strategist

Idaho is the latest of several states that now recognize an independent tort against third parties that willfully compromise evidence in an attempt to interfere with a potential civil lawsuit. Courts have long provided remedies for evidence spoliation when the wrongdoer is a direct party to the litigation, such as providing an adverse inference instruction against the spoliating party. However, courts have not always granted relief to plaintiffs alleging third party spoliation. In Raymond v. Idaho State Police, 451 P.3d 17 (Idaho 2019), the Supreme Court of Idaho formally adopted the tort of Intentional Interference With A Prospective Civil Action By Spoliation Of Evidence By A Third Party (Third Party Spoliation). Adopting this tort provides an avenue of spoliation relief against parties who are not part of the underlying civil lawsuit.

In Raymond, a Deputy Sheriff in Payette County was charged with vehicular manslaughter, a criminal felony, following a motor vehicle accident in which the Deputy was reportedly driving at very high speeds and fatally struck a motorist that was making a lawful left turn. The Estate of the deceased then brought a wrongful death action against the Deputy and the County. In addition, the Estate brought an action against the Idaho State Police, who investigated the accident, alleging that they attempted to conceal evidence and threatened witnesses in an effort to prevent the Deputy from facing criminal and civil liability in relation to the accident. After the trial court dismissed the Estate’s claims against the Idaho State Police, the Estate, on appeal, asked the court to recognize the Third Party Spoliation tort, which it did.

Idaho courts previously teased the idea that third parties may be liable for interfering with evidence in a lawsuit, recognizing that an independent tort may be available to parties harmed by interference with a prospective civil action by spoliation of evidence. In Raymond, the court held that the facts presented provided the opportunity for Idaho to formally recognize the new tort against third parties. In this case, the court allowed the new tort to provide the plaintiff an action against the Idaho State Police, whose only involvement in the case was handling the investigation against the defendant Deputy. By adopting the Third Party Spoliation tort, the Supreme Court of Idaho effectively opened the door for plaintiffs to bring civil actions against a third party who willfully disrupts the outcome of a potential civil lawsuit.

The Raymond court went as far as to layout the elements of the new tort, providing that a plaintiff may succeed on a claim for Third Party Spoliation by showing;

1. 1. a pending or probable lawsuit involving the plaintiff;
   2. the defendant's knowledge of the potential or probable lawsuit;
   3. the wrongful destruction, mutilation, alteration, or concealment of evidence by the defendant designed to disrupt or defeat the potential lawsuit;
   4. disruption of the potential lawsuit;
   5. a causal relationship between the act of spoliation and the disruption to the lawsuit; and
   6. damages proximately caused by defendant's acts.

Together, the elements create an intentional tort that requires a showing of improper motive or wrongful means on behalf of the defendant. In adopting the tort, the court declined the opportunity to recognize an independent tort based on negligent spoliation.

In adopting the Third Party Spoliation tort, the court discussed how damages will be assessed in cases involving spoliation by a third party. Citing reasoning delivered by the United States Supreme Court, the court held that, where damages cannot be ascertained with exactness, a jury is permitted to apply a “just and reasonable inference” to approximate an amount of damages with “reasonable certainty.” Stated otherwise, the court made it clear that it would not relieve any wrongdoer of liability simply because, in cases of spoliation, damages are not easily measured. This approach to proving damages mirrors the court’s policy reasoning behind adopting the new tort, which is to provide a remedy to victims of third party spoliation and to create a deterrence for future wrongdoers. Using the facts of Raymond as an example, the Supreme Court of Idaho provided notice that anyone intentionally interfering with an investigation may be subject to a direct civil action by any potential plaintiff harmed by the disruption, even if they are not directly involved in the underlying controversy. Thus, in situations where a third party intentionally spoliates evidence, subrogation professions handling Idaho cases should consider whether the third party is another potential target.