What Happens When the Other Side Destroys Evidence?

By Adam J. Langino, Esq.


There's a scene in the George Clooney movie Michael Clayton that I'll never forget. In that movie, he's a "fixer" for a large corporate defense firm. There's a scene in which a corporation's lawyer is wearing plastic gloves and shredding damaging evidence to prevent an injured consumer and the community from learning about all the harm that the corporation has caused its community. As audience members watching the film, we feel appalled and sickened. Does that happen in actual lawsuits? I've seen the other side try to hide and destroy evidence in my cases. The following article generally explains the law that governs what happens when you catch the other side in the act.

What factors does the Court look at?

Each state treats the destruction of evidence differently. The standard for holding a bad actor accountable in New York may be different than in New Mexico. However, common themes run through the case law that governs the destruction of evidence regardless of where it occurred.

One factor the court reviews is whether the other side was acting in bad faith. For instance, did the defendant throw away their cell phone after you asked to see if they were texting before the collision? Or was it stolen from them at a nightclub or restaurant? As you can imagine, courts are more likely to hold the other side accountable when they intentionally destroy evidence that they know is hurtful to them. On the other hand, if the evidence is destroyed accidentally or through no fault of their own, a Court may be more inclined not to punish the other side for the evidence destruction.

Even if the evidence is destroyed, it must be relevant for the court to punish the other side for its destruction. For example, if a defendant is a commercial truck driver that harmed you on the roadway, the shirt he was wearing at the time of the collision may not be relevant to whether he was at fault. Therefore, even if you requested that they keep the shirt safe, his intentional destruction of it may not result in the court punishing him for the act.

So, what happens when you catch the other side red-handed in intentionally destroying key evidence in your lawsuit? Ultimately, it will be up to your judge to decide the correct punishment for the act. The Court can enter a default judgment against the defendant on liability in some states. As a matter of law, that means that the other side is at fault for causing your harm. In that instance, a jury would only have to decide how much to pay you to try and make you whole for the harms and losses you incurred by the other party's negligence. The defendant can still put on evidence trying to diminish your injuries. However, they are not allowed to dispute that they were negligent.

Default is the most extreme punishment a court can dole out. As you can imagine, it is rarely used. A court will punish the other side by reading an adverse jury instruction in most instances. What is an adverse jury instruction? This is where the court informs the jury that the defendant destroyed relevant evidence in the case and that jury can infer that evidence was hurtful to the defense of the claim and assume that it would have been helpful to you. As you can imagine, when a jury hears from the court that the defendant destroyed evidence, the jury will likely see your lawsuit in a more favorable light.

Whether a court punishes the other side depends on the facts and circumstances of each case. No one rule fits all; however, having a lawyer skilled in navigating these issues will put you closer to success in holding the other side accountable.

What does the law say?

I am licensed to practice law in North Carolina and Florida and regularly handle wrongful death and catastrophic injury claims in both states. The rules between the two states are similar. However, there are also some differences.

In Stathum-Ward v. Wal-Mart Stores, Inc., 823 S.E.2d 168 (N.C. Ct. App. 2019), the North Carolina Appellate Court reiterated North Carolina's rules on the spoliation in evidence. The court noted:

In Yarborough v. Hughes, the North Carolina Supreme Court considered destruction of evidence and held, "where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control ... there is a presumption or at least an inference that the evidence withheld, if forthcoming, would injure his case." 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). This Court also addressed spoliation in McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. rev. Denied, 352 N.C. 357, 544 S.E.2d 563 (2000). In McLain, we held that lost evidence creates a permissible "adverse inference," not a mandatory presumption. 137 N.C. App. at 185, 527 S.E.2d at 717 (quotation omitted). We further noted, "[w]hen the evidence indicates that a party is aware of circumstances that are likely to give rise to future litigation and yet destroys potentially relevant records without particularized inquiry, a factfinder may reasonably infer that the party probably did so because the records would harm its case." Id. at 187-88, 527 S.E.2d at 718 (citing Blinzler v. Marriott International, Inc., 81 F.3d 1148, 1158-59 (1st Cir.1996) ). The factfinder is free to determine "the documents were destroyed accidentally or for an innocent reason" and reject the inference. McLain, 137 N.C. App. at 185, 527 S.E.2d at 717 (citing Blinzler , 81 F.3d at 1159).

In Florida, Jury Instruction 301.11 states what a jury is told when the other side destroys the evidence. Essentially, there are two versions. The first version is used when the court believes that the other side destroyed evidence. However, the court may not think it did so in bad faith. In that instance, the jury is instructed that it may infer but is not required to infer that the evidence would have been unfavorable to the defendant. The other version is applied when the Court has more significant concerns about the defendant's intentions in destroying evidence. In that instance, the jury is instructed that the jury should find the destroyed evidence unfavorable to the defendant unless the defendant proves otherwise by the greater weight of the evidence. As stated by the Florida Court of Appeals in Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. Dist. Ct. App. 2006)

Spoliation is "[t]he intentional destruction, mutilation, alteration, or concealment of evidence[..]" Black's Law Dictionary 1437 (8th ed. 2004). In cases involving negligent spoliation, courts prefer to utilize adverse evidentiary inferences and adverse presumptions during trial to address the lack of evidence. In cases involving intentional spoliation, courts more often strike pleadings or enter default judgments.

As you can see, the law differs slightly from state to state. To prevail in convincing the court the defendant should be punished for destroying evidence, your lawyer needs to be aware of the law to advocate for you effectively.


I am sorry if you are reading this because someone your love was killed or hurt by the negligent acts of another. I hope that you found the above helpful. As you can see, the destruction of evidence is a complicated issue. That is why it is critical to retain an experienced lawyer to help you navigate these types of claims. Over my career, I have argued many destruction of evidence issues, and I am licensed to practice law in Florida and North Carolina and co-counsel claims in other states. If you would like to learn more about me or my practice, click here. If you want to request a free consultation, click here. As always, stay safe and stay well.

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