2. a legal or contractual duty to preserve evidence which is relevant to the potential civil action;
3. destruction of that evidence;
4. significant impairment in the ability to prove the lawsuit;
5. a causal relationship between the evidence destruction and the inability to prove the lawsuit; and,
6. damages.1
For purposes of spoliation, “evidence” does not include the injured part of a litigant’s body. Thus a plaintiff who suffered a herniated disc was not obligated to forego surgery and preserve the damaged disc for examination.3 The court suggested, however, that a personal injury litigant might be guilt of spoliation if he or she had surgery while a request for a defense medical examination was pending.
Worker’s compensation immunity does not bar an employee’s action against as employer for spoliation.4 The issue is unrelated to worker’s compensation, because spoliation is an independent cause of action. Furthermore, the employer’s spoliation might harm the employee’s causes of action against third parties, rather than the employer itself.5
