证明妨碍（民事诉讼）SPOLIATION+OF+EVIDENCE+IN+CALIFORNIA.docVIP

Page PAGE1 PAGE  PAGE 14  Copyright (c) 1994 by Southwestern University School of Law Southwestern University Law Review 1994 24 Sw. U. L. Rev. 123 LENGTH: 13088 words SPOLIATION OF EVIDENCE IN CALIFORNIA NAME: Melissa A. Bruzzano * BIO: * Associate at Larson Burnham in Oakland, California; B.S., Georgia Institute of Technology; J.D., University of San Francisco School of Law. SUMMARY: ... I. Introduction: The Evolution of Spoliation of Evidence ... Destruction of evidence, whether negligent or intentional, is now the basis for a new theory of negligence - negligent spoliation of evidence - and a new intentional tort - intentional spoliation of evidence. ... Intentional spoliation of evidence was recognized as a tort in California in the landmark case, Smith v. Superior Court. ... An evidence, issue, or terminating sanction could have fulfilled the courts goals of deterring future spoliators and protecting the innocent partys interests. ... Several decisions interpreting Smith suggest that Smith may be limited to actual situations in which the spoliator made a promise to preserve the evidence. ... California Code of Civil Procedure, unlike similar federal and state statutes, specifically refers to destructive testing. ... However, the court mandated that certain procedural safeguards be followed, including: (1) plaintiffs counsel and plaintiffs expert were allowed to be present and to videotape and photograph the testing; (2) defendants were required to videotape each test from beginning to end, including all handling of the fabric preliminary to each test, with photographic identification of any substance added to or placed upon the fabric; and (3) plaintiff was allowed to depose defendants expert witnesses and any others involved in the testing. ... TEXT: [*123] I. Introduction: The Evolution of Spoliation of Evidence January 1994 marked the tenth anniversary of Smith v. Superior Court, n1 the landmark case in which a California cour