Many Illinois litigators have encountered spoliation of evidence, which is the loss, destruction, or alteration of evidence. Examples of spoliation are seemingly endless and include the failure to preserve the scene of a train derailment, the accidental destruction of evidence on a lawyer’s desk by a janitor, the loss of a heater that exploded, the removal of wires from a car that caught on fire, the loss and alteration of medical equipment, and the intentional erasing of a computer image relevant to a copyright lawsuit. To combat spoliation, Illinois and many other states have developed common law and statutory methods to remedy and deter spoliation. Illinois’ spoliation law, however, is somewhat unclear. Although Illinois does not recognize negligent spoliation as an independent cause of action, a party can state such a claim under traditional negligence law. That is, a litigant can bring an ordinary negligence claim for spoliation of evidence; the law need not make any special provision. In contrast to negligent spoliation, whether Illinois permits an independent cause of action for intentional spoliation remains an “open question.” The Illinois Supreme Court has expressly declined to decide the question, and courts applying Illinois law are split. This Article argues that Illinois should recognize the tort of intentional spoliation of evidence.
Michael A. Zuckerman, Yes, I Destroyed the Evidence - Sue Me? Intentional Spoliation of Evidence in Illinois, 27 J. Marshall J. Computer & Info. L. 235 (2009)