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AMI 106 Effect of Intentional Destruction or Suppression of Evidence

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 106
Arkansas Model Jury Instructions-Civil
November 2022 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 1. Introductory Instructions
AMI 106 Effect of Intentional Destruction or Suppression of Evidence
If you find that a party intentionally [destroyed][or][lost][or][suppressed](description of item) with knowledge that [it][its contents] may be material to a [pending][potential] claim, you may draw the inference that [the (contents of the)(document)(writing)(photograph) ((description of item))] [an examination of it] would have been unfavorable to that party's [claim][defense]. When I use the term “material” I mean evidence that could be a substantial factor in evaluating the merit of a claim or defense in this case.
This instruction should be used only when the party requesting the instruction can demonstrate the intentional destruction of material evidence.
This instruction was approved as a correct statement of the law in Bunn Builders, Inc. v. Womack, where the Arkansas Supreme Court held that while intentional destruction is a necessary predicate for giving the instruction, the trial court is not required to find the spoliator acted in bad faith or with the desire to suppress the truth. 2011 Ark. 231, at 10–11. The court in Bunn Builders rejected the Eighth Circuit Court of Appeals' requirement of “intentional destruction indicating a desire to suppress the truth.” Id. (citing Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004)). “Spoliation is defined as ‘the intentional destruction of evidence and when it is established, [the] fact finder may draw [an] inference that [the] evidence destroyed was unfavorable to [the] party responsible for its spoliation.’ ” Goff v. Harold Ives Trucking Co., 342 Ark. 143, 146, 27 S.W. 3d 387, 388 (2007) (quoting Black's Law Dictionary 1401 (6th ed. 1990)). In Bedell v. Williams, the Arkansas Supreme Court confirmed its holding in Bunn Builders but reversed the giving of this instruction because the trial court had not made a finding, and there was no evidence presented to suggest, that the documents in question had been destroyed. 2012 Ark. 75, at 20. The court stated that the facts that certain documents were required by law to be kept, were in existence at one time, and were not produced because they could not be located, were alone insufficient to support the giving of this instruction. Id.
In Tomlin v. Wal-Mart Stores, Inc., the trial court's refusal to give spoliation instruction was held proper where there was no proof that the defendant had destroyed the evidence in other than a routine manner or that it was intentionally destroyed. 81 Ark. App. 198, 209, 100 S.W.3d 57, 64 (2003); Cantrell v. Toyota Motor Corp., 2018 Ark. App. 335, 553 S.W.3d 157. Likewise, in Rodgers v. CWR Construction, Inc., the court held that “[i]n the absence of any intentional misconduct, … the trial court [did not] abuse[] its discretion by failing to give the jury an instruction on spoliation of evidence.” 343 Ark. 126, 133, 33 S.W.3d 506, 511 (2000). But see Superior Fed. Bank v. Mackey, 84 Ark. App. 1, 129 S.W.3d 324 (2003) (holding there was sufficient evidence for the trial court's submission of a spoliation instruction where no credible explanation was given for absence of an approved contractor's list, personnel evaluations, and loan committee minutes).
The Arkansas Supreme Court has declined to recognize an independent tort of spoliation in both the first party and third party contexts. Goff, supra (first party); Downen v. Redd, 367 Ark. 551, 242 S.W.3d 273 (2006) (third party). However, the court in Goff observed that “an aggrieved party can request that a jury be instructed to draw a negative reference against the spoliator.” 342 Ark. at 150, 27 S.W.3d at 391. See also Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 303, 149 S.W.3d 325, 348 (2004) (where the railroad intentionally failed to preserve voice tapes and track inspection records, instruction was given to allow jury to infer that contents of the tapes and records would have been unfavorable to the railroad); Carr v. St. Paul Fire & Marine Ins. Co., 384 F. Supp. 821, 831 (W.D. Ark. 1974) (recognizing that the jury had a right to infer that the record, had it been retained, would have been probative of negligence).
The adverse inference under the doctrine of spoliation has been drawn where a physician failed to dictate a post-surgical note, when required by standard medical procedure and public policy to do so. Smith v. United States, 128 F. Supp. 2d 1227, 1233–34 (E.D. Ark. 2000).
In Middleton v. Middleton, 188 Ark. 1022, 1026, 68 S.W.2d 1003, 1005–06 (1934), a case involving a destroyed holographic will, the Arkansas Supreme Court explained:
The general rule deduced from the maxim that all things are presumed against a wrongdoer is so natural and just that it has become a part of the law of every civilized land, and by it the presumption is all against the spoliator. Where some written instrument, which is a part of the material evidence in a case, has been destroyed, the presumption arises that if it had been produced it would have been against the interest of the spoliator, and where the instrument destroyed is of such nature as to destroy all evidence, there follows a conclusive presumption that if produced it would have established the claim of the adversary of him who destroyed the instrument where it is shown that the destruction was willful.
Since the adverse inference is permissive, it is subject to reasonable rebuttal. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 750 (8th Cir. 2004).
The Arkansas Supreme Court has also declined to apply the doctrine to so-called “secondary evidence” in a case in which there also was no indication that the defendant had deliberately destroyed the records for the purpose of interfering with the plaintiff's case. Gallup v. St. Louis, I.M. & S.R. Co., 140 Ark. 347, 215 S.W. 586 (1919).
An instruction on spoliation is designed to remedy litigation misconduct. As the court noted in Goff, the conduct described in this instruction may also: (i) be a criminal offense, see Ark. Code Ann. §§ 5-53-2110, 5-53-2111 (Repl. 1997); (ii) give rise to discovery sanctions, see Ark. R. Civ. P. 37(b)(2); (iii) constitute a factor in the award of punitive damages, see Barber, supra; and (iv) violate ethical standards, see Model Rules of Professional Conduct 3.4(a) and 8.4(c), (d).
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