Destruction or “spoliation” of evidence occurs when someone with an obligation to preserve evidence with regard to a legal claim but fails to do so, either knowingly or intentionally. Such a failure to preserve evidence can take place by destruction, loss, or damage of the evidence. When spoliation occurs, the party responsible may be held accountable in court through a variety of different sanctions. In Kansas, a defendant may be sanctioned by an “adverse inference” instruction, which is explained in more detail below.

In Kansas, a party claiming spoliation of evidence must establish that “(1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Inc. v. Bankers’ Bank of Kansas, N.A., 426 P.3d 536 (Kan. Ct. App. 2018). A culpable state of mind for a spoliation sanction can range “through the degrees of negligence to intentionality. Id.

If a party to a lawsuit can present sufficient evidence that an adverse party destroyed or “spoliated” evidence, the courts may provide relief. The most common form of relief is an “adverse inference” instruction where the judge instructs the jury to assume that the destroyed evidence would have been harmful to the destroyer’s case and helpful to the adverse party’s case.