2008-08-24 Spoliation under Illinois Law Mirrors Residential Funding's Ordinary Negligence Analysis

In a recent decision, the District Court provides an examination of spoliation principles under Illinois law. While noting that the spoliation does constitute a separate cause of action, it points out that both Illinois state courts as well as the 7th Circuit have embraced the "ordinary negligence" standard for a finding of spoliation, aligning the 7th Circuit with the 2d Circuit's Residential Funding decision.

In Stoner v. Wal-Mart Stores, Inc., 2008 WL 3876077, 2 (C.D.Ill.,2008), the District Court analyzed the 7th Circuit's approach to spoliation in Illinois, and under Illinois law, imposing a negligence approach to showing of destruction of evidence, i.e., duty, breach, and, damages:

"In Borsellino v. Goldman Sachs Group, Inc., 477 F.3d 502 (7th Cir.2007), the Seventh Circuit summarized Illinois law regarding spoliation of evidence, as follows:[P]laintiffs brought their spoliation charges in two separate claims-one for intentional spoliation of evidence and one for negligent spoliation. The Supreme Court of Illinois has emphasized, however, that the state does not recognize a tort of intentional spoilation of evidence, and that negligent spoliation is not itself an independent tort but rather a type of negligence. Boyd v. Travelers Ins. Co., 652 N.E.2d 267, 273 (Ill.1995); see Cangemi v. Advocate S. Suburban Hosp., 845 N.E.2d 792, 815 (Ill.App.2006)(“Plaintiffs cite to no case that specifically recognizes intentional spoliation of evidence as a tort in Illinois. Neither have we found such an Illinois case.”). We thus analyze the two charges of spoliation as an ordinary negligence claim, which to prevail will eventually require showing a duty (in this case to protect documents), a breach of that duty, causation, and damages. Boyd, 652 N.E.2d at 270. Borsellino, 477 F.3d at 509-510. See also, Dardeen v. Kuehling, 821 N.E.2d 227, 231 (Ill.2004)."