What is spoliation?
Spoliation is defined as the “destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or future litigation once the duty to do so has been triggered. A party seeking sanctions for spoliation first bears the burden of establishing the opposing party destroyed relevant evidence. To determine whether spoliation occurred, the majority of courts use some variation of a three-part test. This test includes (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind, and (3) the 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.
Was there spoliation?
Whether a duty to preserve evidence exists is a question of law. A trial court’s decision imposing sanctions for spoliation will be reviewed on an abuse of discretion standard. A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds of untenable reasons. Untenable reasons include errors of law.
Washington cases have not recognized a general duty to preserve evidence. Adopting an approach for determining when spoliation is sanctionable from an Alaska case, Sweet v. Sisters of Providence in Washington, 895 P.2d 484 (Alaska 1995), courts in Washington have held the “severity of a particular act (in terms of the relevance or importance of the missing evidence or of the culpability of the actor) determines the appropriate remedy. Courts have required the culpable conduct relied on in seeking a sanction must be connected to the party against whom a sanction is sought. The connection requirement means the act of destruction must be by someone over whom the potentially sanctioned party had some control.
What is the remedy for spoliation?
Discovery sanctions permit a court to impose costs, or in appropriate cases, remove certain claims or defenses if spoliation constitutes disobedience of proper discovery orders. An advantage of dealing with spoliation through discovery sanctions is the remedies are applied to the litigation in which the alleged spoliation occurred.If there is spoliation, then courts generally consider three factors to determine whether and what type of sanctions to issue. First, the degree of fault of the party who altered or destroyed the evidence. Second, the degree of prejudice suffered by the opposing party. Third is whether there is a lesser sanction that will avoid substantial unfairness to the opposing party. Often times, if spoliation is found, the courts will allow for an adverse inference instruction to the jury whichis rebuttable by the other party.
In order to receive the adverse inference instruction, the requesting party must demonstrate not only the opposing party destroyed evidence as that term is ordinarily understood, but also the destroyed evidence would have been favorable to the requesting party. However, in practice, an adverse inference instruction will often end litigation, as it is too difficult a hurdle for the spoliator to overcome. Because of the difficulty to overcome this hurdle, courts require that an adverse inference instruction is only supported where there is bad faith, or at a minimum, gross negligence. Mere negligent actions does not support such a jury instruction. Additionally, courts will consider whether the requesting party had adequate opportunity to view and examine the evidence.
A prudent carrier, or self-insured entity, would do well to recognize the importance of correspondence or notices from claimants or attorneys requesting preservation of evidence. Destruction of evidence subsequent to receipt of notice could be construed as bad faith.
 Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 639 (9th Cir. 2009)
 Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015).
 Ghorbanian, D.D.S, v. Guardian life Insurance Company of America, 2017 WL 1543140 (W.D. Wash. Apr. 28, 2017).
 Homeworks Constr., Inc. v. Wells 122 Wash.App. 892, 898, 138 P.3d 543 (2006).
 See Teter v. Deck, 174 Wash.2d 207, 274 P.3d 336 (2012).
 Cook v. Tarbert Logging, Inc., 190 Wash. App. 448, 461, 360 P.3d 855, 862 (2015)\
 § 22:15.Spoliation of evidence, 16A Wash. Prac., Tort Law And Practice § 22:15 (4th ed.)
 Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d at 992; see also Leon v. IDX Sys. Corp., 2004 U.S. Dist. LEXIS 31361, 2004 WL 5571412, at *3 (W.D. Wash. 2004) aff’d., 464 F.3d 951 (9th Cir. 2006).
 Cook v. Tarbert Logging, Inc., 190 Wash. App. 448, 461, 360 P.3d 855, 862 (2015)
 Marshall v. Bally’s Pacwest, Inc., 94 Wash. App. 372, 381-383, 972 P.2d 475, 480 (Wash. App. Div. 2, 1999)
 An emerging issue is the extent to which a party has a duty to preserve e-mails and other documents stored electronically, and thus whether a party may be exposed to an allegation of spoliation if such documents are deleted, erased, or otherwise destroyed electronically