No Duty to Preserve Evidence in Illinois?
“The general rule in Illinois is that there is no duty to preserve evidence.”Terry Martin, et al., v Keeley & Sons, 2012 IL 113270. That is a direct quotation from a recent state spoliation case from the Illinois Supreme Court. In Keeley, construction workers had been injured when the beam they were standing on broke in half. After the OSHA inspector finished his accident report, the defendant destroyed the tangible evidence.
Illinois already had a narrower requirement of the duty to preserve electronic data discovery, documents and other tangible evidence than the federal courts. Illinois allows an exception to the rule that there is “no duty to preserve evidence” for spoliation allegations based on the legal theory of negligence. A party can prove negligent spoliation by demonstrating that:
(1) A relationship between the parties whereby a duty to preserve evidence arises, such as an agreement, contract, statute, special circumstance or voluntary assumption of the duty; and a breach of that duty that proximately caused injury and damages;
(2) That litigation whereby the evidence was needed was foreseeable. Boyd v. Travelers Ins. Co., 652 N.E. 2d 267 (Ill. 1995).
Plaintiff trial lawyers in Keeley lost their negligent spoliation argument in the trial court, but won on appeal to the Illinois Fifth District Court of Appeals. The Appeals Court found that by keeping the beam, the defendant voluntarily undertook the duty to preserve. Addressing only the first prong, the Illinois Supreme Court reversed, finding the defendant’s actions did not constitute a voluntary duty to preserve the evidence because defendant never performed any testing of the beam or moved the beam from the place where it fell before the beam was destroyed.
The dissent, however, noted that the plaintiffs were unaware of the beam’s destruction until after it had been destroyed. “Despite the obvious impossibility of the plaintiffs requesting the preservation of the I-beam before it was destroyed, the majority faults them for their failure to satisfy their strict ‘burden of establishing all elements of their spoiliation claims.'”
Although this case dealt with tangible evidence, electronic data spoliation is also included in the general discovery rules. Our firm engages in plaintiff electronic discovery and offers a wide range of eConsulting and strategy planning services from the outset of cases including evaluations of defense productions for potential ediscovery spoiliation. Call us directly for a consultation at 888-313-4457.