A judge has the discretion to impose sanctions for the spoliation or destruction of evidence, whether negligent or intentional, in the underlying action in which the evidence would have been offered.
This section is derived from Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 235–236, 786 N.E.2d 824, 833–834 (2003), and Commonwealth v. Henderson, 411 Mass. 309, 311–312, 582 N.E.2d 496, 497 (1991). See also Mass. R. Civ. P. 37(b); Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 126–129, 697 N.E.2d 527, 530–531 (1998); Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197, 539 N.E.2d 1017, 1021 (1989). There is no tort cause of action for spoliation or destruction of evidence. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 547, 773 N.E.2d 420, 424 (2002).
“Sanctions may be appropriate for the spoliation of evidence that occurs even before an action has been commenced, if a litigant or its expert knows or reasonably should know that the evidence might be relevant to a possible action. The threat of a lawsuit must be sufficiently apparent, however, that a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.” (Citations omitted.)
Kippenhan v. Chaulk Servs., Inc., 428 Mass. at 127, 697 N.E.2d at 530. “While a duty to preserve evidence does not arise automatically from a nonparty’s mere knowledge, there are ways that that duty may be imposed on a nonparty.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 548, 773 N.E.2d at 425. For example, a witness served with a subpoena duces tecum must preserve evidence in his or her control when the subpoena is received, or a third-party witness may enter into an agreement to preserve evidence. Id. at 549, 773 N.E.2d at 425.
Civil Cases. “[S]anctions for spoliation are carefully tailored to remedy the precise unfairness occasioned by that spoliation. A party’s claim of prejudice stemming from spoliation is addressed within the context of the action that was allegedly affected by that spoliation.” Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 551, 773 N.E.2d 420, 426 (2002). “As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the nonspoliating party.” Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 235, 786 N.E.2d 824, 833–834 (2003).
“[I]n a civil case, where an expert has removed an item of physical evidence and the item has disappeared, or the expert has caused a change in the substance or appearance of such an item in such circumstances that the expert knows or reasonably should know that that item in its original form may be material to litigation, the judge, at the request of a potentially prejudiced litigant, should preclude the expert from testifying as to his or her observations of such items before he or she altered them and as to any opinion based thereon. The rule should be applied without regard for whether the expert’s conduct occurred before or after the expert was retained by a party to the litigation.”
Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197–198, 539 N.E.2d 1017, 1021 (1989). See also Bolton v. MBTA, 32 Mass. App. Ct. 654, 655–657, 593 N.E.2d 248, 248–250 (1992) (extending rule to cover spoliation of evidence by a party after expert inspection).
“The spectrum of remedies [also] includes allowing the party who has been aggrieved by the spoliation to present evidence about the preaccident condition of the lost evidence and the circumstances surrounding the spoliation, as well as instructing the jury on the inferences that may be drawn from spoliation” (citations omitted). Gath v. M/A-Com, Inc., 440 Mass. 482, 488, 802 N.E.2d 521, 527 (2003). A judge may preclude testimony that is dispositive of the ultimate merits of the case. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. at 550, 773 N.E.2d at 426. Once the moving party produces evidence sufficient to establish that another party lost or destroyed evidence that the litigant or its expert knew or reasonably should have known might be relevant to a pending or potential case, the burden shifts to the nonmoving party to prove that it was not at fault. Scott v. Garfield, 454 Mass. 790, 799, 912 N.E.2d 1000, 1008 (2009). See also Nally v. Volkswagen of Am., Inc., 405 Mass. at 195, 199, 539 N.E.2d at 1020, 1022 (defendant entitled to summary judgment if excluded testimony prevents plaintiff from making prima facie case). For the extreme sanction of dismissal or entering a default judgment, ordinarily a finding of wilfulness or bad faith is necessary. Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. at 235–236, 786 N.E.2d at 834.
Criminal Cases. In Commonwealth v. DiBenedetto, 427 Mass. 414, 419, 693 N.E.2d 1007, 1011 (1998), the court addressed the appropriate remedial action in criminal cases:
“[W]hen potentially exculpatory evidence is lost or destroyed, a balancing test is employed to determine the appropriateness and extent of remedial action. The courts must weigh the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant. To establish prejudice, the defendant must show a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to [the defendant’s] cause.” (Quotations and citation omitted.)
See also Mass. R. Crim. P. 14(c); Commonwealth v. Olszewski, 416 Mass. 707, 714, 625 N.E.2d 529, 535 (1993), cert. denied, 513 U.S. 835 (1994); Commonwealth v. Willie, 400 Mass. 427, 432–433, 510 N.E.2d 258, 261–262 (1987). Remedial action in the form of sanctions or a “missing evidence” instruction is not appropriate unless the defendant meets “his initial burden of showing a reasonable possibility that the lost evidence was exculpatory.” Commonwealth v. Kee, 449 Mass. 550, 554, 870 N.E.2d 57, 63 (2007). If remedial action is required, the judge has the discretion to fashion a remedy that will protect the defendant’s rights. See, e.g., Commonwealth v. Kee, 449 Mass. at 557–558, 870 N.E.2d at 65 (missing evidence instruction); Commonwealth v. Harwood, 432 Mass. 290, 303, 733 N.E.2d 547, 557 (2000) (suppression of evidence). Cf. Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 28, 616 N.E.2d 476, 484 (1993) (dismissal appropriate only where the harm is irremediable).