Spoliation: When to Plead (or Oppose) the Cause of Action in Louisiana Federal Courts

Law Regarding Pleading Spoliation
The theory of spoliation of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Hooker v. Super Products Corp., 751 So.2d 889 (La. App. 5 Cir. 6/30/99). The tort of spoliation has its roots in the evidentiary doctrine of “adverse presumption” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Randolph v. General Motors Corp., 646 So.2d (La App. 1 Cir. 11/10/94).
The Louisiana Western District Court has held that since spoliation is based on the intentional destruction of evidence, it stands to reason that it is an intentional tort. As such, it must be specifically pled in litigation. Therefore, in order for a plaintiff to recover damages for a spoliation claim, the Plaintiff must articulate facts (or evidence of facts) in the pleading which allege spoliation.
In Matter of Southmark, Corp. The U.S. Fifth Circuit Court of Appeals held that even though Rule 15 of the Federal Rules of Civil Procedure “evinces a bias in favor of granting a leave to amend, it is not automatic.Matter of Southmark, Corp., 88 Fed. 3d (C.A. 5 Tex 1996). In deciding whether to grant such leave, the court may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. Id.
In Southmark, the Court denied a motion for leave to amend, stating that “liberality in pleading does not bestow on a litigant the privilege of neglecting her case for a long period of time.” Id. The Court concluded that it may consider an “unexplained delay” following an original complaint, and whether the facts underlying the amended complaint were known to the party when the original complaint was filed. Id. In Southmark, the Court reasoned that the denial of Plaintiff’s motion for leave to amend was proper because it had been 13 months since the filing of the original complaint and 11 months since the filing of the supplemental complaint, and Plaintiff could provide no valid reason for the complaint. Moreover, the facts which Plaintiff sought to allege in her amended complaint were known to Plaintiff at the time she filed her original complaint.
If you are uncertain as to whether as to whether Plaintiff knew evidence had been destroyed when she filed her original complaint, if several months have elaped since the filing of the original complaint and several more months since the filing of a supplemental complaint, with no mentionof spoliation issue in that time period,  I believe you  can make a valid argument that any motion for leave to amend filed at this point should be denied by the Court.

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