Under Illinois law, spoliation of evidence is a form of negligence. Accordingly, a plaintiff claiming spoliation of evidence must prove that: (1) the defendant owed the plaintiff a duty to preserve the evidence; (2) the defendant breached that duty by losing or destroying the evidence; (3) the loss or destruction of the evidence was the proximate cause of the plaintiff's inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual damages. Dardeen v. Kuehling, 213 Ill.2d 329, 335-36 (2004).

Generally, there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute, or another special circumstance. Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 194-95 (1995). Moreover, a defendant may voluntarily assume a duty to preserve evidence of potential future litigation by affirmative conduct. Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 74 (1964). To voluntarily assume a duty to preserve evidence by affirmative conduct, one must have some degree of control over the evidence. Jones v. O’Brien Tire & Battery Serv. Ctr., 374 Ill. App. 3d 918, 927 (5th Dist. 2001).

Under the two prong test to determine whether a duty to preserve evidence exists, a plaintiff must establish that the defendant owed him a duty to preserve evidence that a reasonable person should have foreseen as evidence material to a potential civil litigation. When evidence is spoiled, the defendant may be liable for actual damages suffered by the plaintiff as the result of the destruction of evidence. This includes the potential inability to succeed in the underlying civil action.

In a recent Illinois Appellate Court case, a shopper was injured in the aisle of a store. The plaintiff alleged that the store failed to download or preserve footage of the incident from the store’s surveillance system. In regards to the shopper’s spoliation claim, the court found that summary judgment for the store was proper because the surveillance video did not show the area where the Plaintiff was injured. Thus any loss or destruction of the video would not have hindered the shopper from proving her case. Bulduk v. Walgreen Company, 2015 IL App. 150166 (October 2015).

What does this mean for you?

There is no general duty to preserve evidence. However, if litigation is reasonably foreseeable against you or your company, ensure that evidence associated with that potential lawsuit is not lost or destroyed. If you are found to have had a duty to the plaintiff, destroying evidence may lead to complete liability of plaintiff’s damages.