Rule 34A. Spoliation of Evidence

Advisory Commission Comments to Rules 34A.01-34A.02

Advisory Commission Comments

Advisory Commission Comment [1992]

Concern over destructive testing of real evidence prompted this addition to the Rules of Civil Procedure. If one party’s expert destroys a tangible thing in testing, the opponent will be deprived of similar testing and may be without evidence to support a claim or defense. Requiring a motion, which would put the opponent on notice, and giving the court discretion to set conditions should prevent an unjust result. The rule applies, however, only where a civil action has been commenced.

Advisory Commission Comment [1994]

The amendment provides for destruction or other disposition in addition to testing.

Advisory Commission Comment [2006]

The rule has a new, broader heading. Rule 34A.02 is new. Also, Rule 37 sanctions are made available against offenders. Those sanctions include, at 37.02, refusal to allow claims or defenses; even dismissal of a plaintiff’s complaint and entry of default judgment against a defendant are possible.


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