The duty to preserve evidence is a cornerstone of American litigation, rooted in the fundamental fairness that underlies the adversarial system. In South Carolina, there is no general legal duty to preserve evidence; however, the duty to preserve begins at the moment a lawsuit is pending or reasonably foreseeable.[1]
In South Carolina, the duty to preserve evidence comes from the common law doctrine of spoliation. The formulation of this principle comes from Silvestri v. General Motors.[2] In Silvestri, the court explained that spoliation is the “the destruction or material alteration of evidence or … the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[3] The court held that “the duty to preserve material evidence arises not only during litigation but also extends to the period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”[4] Thus, a duty to preserve evidence arises for material evidence when a party reasonably foresees litigation, and when such material evidence is not preserved spoliation may ensue.
Although South Carolina courts have refused to recognize a separate cause of action for spoliation, South Carolina courts have long recognized that parties are entitled to favorable presumptions about the contents of missing evidence when an opponent is responsible for the destruction of evidence that may have been relevant.[5] Dating back to the early 19th century, South Carolina courts have held to reasoning that remains true today: presumptive prejudice against the party responsible for spoliation of material evidence.[6]
In Kershaw County Board of Education v. U.S. Gypsum Co., the South Carolina Supreme Court upheld a trial judge’s jury instruction that “when evidence is lost or destroyed by a party an inference may be drawn by the jury that the evidence which was lost or destroyed by that party would have been adverse to that party.[7]” Here, the school board brought suit upon the manufacturer of ceiling plaster alleging that the ceiling plaster in many of their schools contained asbestos.[8] The trial court issued a discovery order mandating notice be given to the manufacturer prior to any asbestos being removed from the subject schools.[9] However, despite this order, the school board conducted an asbestos abatement and failed to notify the manufacturer.[10] Thus, the trial court judge proffered the spoliation jury charge, and the South Carolina Supreme Court stated that the court’s decision to charge the jury on spoliation was “proper under the facts of the case.[11]”
Although a party may be entitled to a spoliation jury charge, the party seeking the inference “must be prepared to make a showing that the document or evidence might reasonably have supported whatever presumption is being requested of the fact finder” and the party responsible for the missing evidence may be given a chance to explain the absence.[12] Moreover, in addition to the remedy of a the spoliation jury charge, in severe circumstances courts have offered a more extreme remedy, parties have had pleadings struck from the record.[13]
[1] See Kevin Eberle, Spoliation in South Carolina, 19 S.C. Law 26, 28 (2007) (citing Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001).
[2] Silvestri v. GMC, 271 F.3d 583, 590 (4th Cir. 2001).
[3] Id. (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)).
[4] Id. at 591.
[5] Stokes v. Spartanburg Reg’l Med. Ctr., 368 S.C. 515, 521, 629 S.E.2d 675, 678 (Ct. App. 2006).
[6] Id. at 519, 629 S.E.2d at 679.
[7] Kershaw County Bd. Of Educ. v. United States Gypsum Co., 302 S.C. 390, 394-95, 396 S.E.2d 369, 372 (1990).
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Kershaw County Bd. Of Educ., at 394, 396 S.E.2d at 372; Pringle v. SLR, Inc., 382 S.C. 397, 405, 375 S.E.2d 783, 787 (Ct. App. 2009) (citing Kevin Eberle, Spoliation in South Carolina, 19 S.C. Law 26, 32 (2007)).
[13] Id. (citing QZO, Inc. v. Moyer, 358 S.C. 246, 258, 594 S.E.2d 541, 548 (Ct.App.2004) (affirming decision of circuit court to strike pleading after appellant destroyed relevant evidence).