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Fletcher v. Dorchester Mutual Insurance Company8/16/2002
parts when [they] knew or should have known that the condition of said circuit and its appurtenant parts constituted an element vital to the establishment and proof of the cause and origin of the subject fire," and that they had suffered "irreparable harm" as a result. In separate counts for "negligent spoilation of evidence," the plaintiffs alleged that the defendants "knew, or should have known, that said [electrical] circuit was a relevant piece of causative evidence to potential liability claims" and therefore "owed to the Plaintiffs a duty of care to preserve the fire scene and the subject electrical circuit for prospective civil litigation." The removal of the electrical circuit was allegedly a breach of that duty. Finally, in their counts for "intentional spoilation of evidence," the plaintiffs alleged that the defendants breached that same "duty of care to preserve the property" by removing the electrical circuit "with the purpose of harming the Plaintiffs' prospective actions against [the owner] and others" when they "knew or should have known that harm to the Plaintiffs' prospective claims and lawsuits was substantially certain to follow."
Dorchester Mutual filed a motion to dismiss for failure to state a claim, arguing that Massachusetts does not recognize an action in tort for "spoliation of evidence." The judge agreed, noting that the remedy for spoliation of evidence, if any occurred, would be the imposition of appropriate sanctions in the underlying tort action. See Kippenhan v. Chaulk Serve., Inc., 428 Mass. 124, 126-128 (1998); Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 197-198 (1989). Thereafter, Splaine filed his own motion to dismiss, which was allowed on the same ground.
2. Discussion.
To date, we have not recognized a cause of action for spoliation of evidence. Most jurisdictions that have considered the issue have declined to recognize such a cause of action. We adhere to that majority view.
Our inquiry must begin by determining whether, and in what circumstances, a duty to preserve evidence arises. See Pirrone v. Boston, 364 Mass. 403, 413 n.13 (1973) ("there need be a remedy only where there is an enforceable duty"). Whether to recognize a duty is a matter of policy, and "the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Luoni v. Berube, 431 Mass. 729, 735 (2000), quoting W.L. Prosser & W.P. Keeton, Torts 53, at 358-359 (5th ed. 1984).
Persons who are not themselves parties to litigation do not have a duty to preserve evidence for use by others. Nonparty witnesses may have evidence relevant to a case -- documents, photographs, tape recordings, equipment parts, or any other tangible objects -- and may know of its relevance, but that knowledge, by itself, does not give rise to a duty to cooperate with litigants. Automatic imposition of such a duty on all witnesses would interfere with a witness's own property rights. A nonparty witness is not required to preserve and store an item merely because that item may be of use to others in pending or anticipated litigation.
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. Witnesses may be required to produce particular items by way of a subpoena duces tecum, as long as the item is still in the witness's possession, custody, or control at the time the subpoena is served. See Mass. R. Civ. P. 45 (b), 365 Mass. 809 (1974); Commonwealth v. Kreplick, 379 Mass. 494, 497 (1980) ("a person cannot be compelled to produce, under a subpoena, a document which is neither in his possession nor under his control");
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