“The plaintiff contends the allegations contained in his petition are not limited to the singular cause of action of negligent spoliation of evidence and that the sufficiency of the petition should not be measured solely by the existence (or lack thereof) of that specific tort. Rather, he avers the petition sufficiently describes negligent conduct that is recoverable under claims ranging from (1) impairment of a civil claim; (2) loss of a right or opportunity; (3) detrimental reliance; (4) general negligence under La.Civ.Code art. 2315; and (4) breach of contract. Thus, he argues that this court’s position on the viability of a negligent spoliation cause of action in Louisiana is not dispositive of the issue. We disagree with respect to his tort claims. At its heart, the petition prays for relief for third parties’ acts of negligently destroying evidence. Whether the law recognizes this type of relief is not a question of semantics. Rather, it is a legal inquiry that can only be analyzed within the framework of answering the sole issue of whether Louisiana recognizes a claim for negligent spoliation.” Examining the relevant policy considerations under 2315, and quoting from a California decision, the Court concluded “‘that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.’ We adopt this logic and write separately on the issue to discuss the alternative remedies plaintiffs can seek in Louisiana. Discovery sanctions and criminal sanctions are available for first-party spoliators. Additionally, Louisiana recognizes the adverse presumption against litigants who had access to evidence and did not make it available or destroyed it. Regarding negligent spoliation by third parties, the plaintiff who anticipates litigation can enter into a contract to preserve the evidence and, in the event of a breach, avail himself of those contractual remedies. Court orders for preservation are also obtainable. In this particular case, the plaintiff also could have retained control of his vehicle and not released it to the insurer, thereby guaranteeing its availability for inspection. Furthermore, he could have bought the vehicle back from the insurer for a nominal fee.” Reynolds v. Bordelon, 2014-2362 (La. 6/30/2015), 2015 WL 3972370.
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