Business & Insurance Litigation Newsletter for Indiana

Indiana Does Not Recognize Tort for First-Party Spoliation of Evidence

In Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349 (Ind. 2005), the Indiana Supreme Court addressed the issue of whether intentional destruction of evidence by a party gives rise to a separate independent tort for spoliation of evidence. Indiana law recognizes a claim against a third-party for spoliation of evidence, but the issue of whether such a claim could be asserted against a party to the litigation was an issue of first impression. It is well established in Indiana that intentional first-party spoliation of evidence may be used to establish an inference that the spoliated evidence was unfavorable to the party responsible. Cahoon v. Cummings, 734 N.E.2d 535 (Ind. 2000). Gribben argued that this inference was not sufficient to discourage the increasing incidences of spoliation of evidence and that an independent tort was needed. The court, however, disagreed and held that a plaintiff in a tort action does not have an additional independent cognizable claim against the defendant for spoliation of evidence under Indiana law.