1. SPOLIATION
A UNIQUE CLAIM

2. SPOLIATION
THE BASICS
Illinois courts do not recognize spoliation as an independent tort. Martin v. Keeley & Sons, Inc., 2012 IL , ¶26; Martin, 2012 IL , ¶26; Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 194 (1995).
The general rule in Illinois is that there is no duty to preserve evidence. Martin, 2012 IL , ¶27.

3. SPOLIATION
THE BASICS
Instead, spoliation is a form of negligence, and spoliation claims are analyzed under a negligence framework. Boyd, 166 Ill. 2d at 194–95; Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212, 215 (2nd Dist. 2003).

4. SPOLIATION
THE BASICS
Under that framework, a plaintiff must show: 1) that the defendant in a spoliation case owed a duty to the plaintiff to preserve the evidence that was allegedly lost or destroyed, 2) that the defendant breached that duty by losing or destroying the evidence, 3) that the loss or destruction of evidence was the proximate cause of the plaintiff inability to prove an underlying lawsuit, and 4) that the plaintiff suffered actual damages. Martin, 2012 IL , ¶27.

5. THE FIRST PRONG OF THE DUTY ELEMENT
SPOLIATION
THE FIRST PRONG OF THE DUTY ELEMENT
The Supreme Court of Illinois “tailored the duty element to spoliation claims” in Boyd by setting forth a two-prong test. Dardeen v. Kuehling, 213 Ill.2d –36 (2004) citing Boyd, 166 Ill. 2d at 195. The first prong requires the plaintiff to show that a duty arose through a contract, agreement, statute, or other special circumstance, or through the defendant’s voluntary assumption of such a duty by affirmative conduct. Boyd, 166 Ill.2d at 195.

6. THE FIRST PRONG OF THE DUTY ELEMENT
SPOLIATION
THE FIRST PRONG OF THE DUTY ELEMENT
Indeed, Illinois courts have held that requesting that evidence be preserved does not create a duty for the defendant to preserve evidence. In Andersen, 341 Ill. App. 3d at 217, the Court held “[w]e decline to hold that a mere request that a party preserve evidence is sufficient to impose a duty absent some further special relationship.”

7. SPOLIATION The Martin case
“Relying on the ‘special circumstances’ exception discussed in Miller and Dardeen, plaintiffs contend that Keeley's exclusive possession and control of the I-beam constituted a special circumstance under which Keeley had a duty to preserve the beam. Plaintiffs contend that a defendant's possession and control of evidence, in itself, is sufficient to establish the relationship prong of the Boyd test. Plaintiffs base their contention on our discussion of possession in Dardeen. There, we noted that ‘no Illinois court has held that a mere opportunity to exercise control over the evidence at issue is sufficient to meet the relationship prong’ and that ‘[t]he record here indicates that State Farm had neither possession nor control over [defendant's] sidewalk and, therefore, owed [plaintiff] no duty to preserve it.’”

8. SPOLIATION The Martin case
“Contrary to plaintiffs' contention, we did not hold in Dardeen that a defendant's possession and control of the evidence, standing alone, is sufficient to establish a duty to preserve the evidence. Rather, we held that State Farm's lack of possession or control over the sidewalk defeated the plaintiff's spoliation claim. It is clear from the context of the Dardeen decision that something more than possession and control are required, such as a request by the plaintiff to preserve the evidence and/or the defendant's segregation of the evidence for the plaintiff's benefit.” Martin, at ¶¶ (emphasis added)

9. The Special Relationship
SPOLIATION
The Special Relationship
The Supreme Court has only “hinted” at what constitutes a “special circumstance” to create a relationship sufficient to support a duty to preserve evidence. Martin, at ¶ 39; Dardeen, 213 Ill.2d at 338.

10. Voluntary Undertaking
SPOLIATION
Voluntary Undertaking
In order to state a cause of action for voluntary undertaking, the plaintiff must allege facts that support a claim that she relied on the defendant’s alleged undertaking. Blankenship v. Peoria Park District, 269 Ill. App. 3d 416, 423 (3rd Dist. 1994) citing Vesey v. Chicago Housing Authority, 145 Ill.2d 404, (1991).

11. Voluntary Undertaking
SPOLIATION
Voluntary Undertaking
In Wofford v. Tracy, 2015 IL App (2d) , ¶ 58, the Court stated:
“The Combs court emphasized that mere possession did not constitute a voluntary undertaking to preserve something.  (passively allowing house to stand until it was demolished did not constitute preservation or control). Also, we held that the fact that the insurer conducted an investigation did not trigger a duty to preserve the fire scene.  We emphasized that the defendant must actually preserve the evidence in question, not merely conduct an investigation.  Here, again, plaintiffs pleaded (with respect to each defendant in this appeal) that, during his October 11, 2010, inspection of the fire scene, Erickson “did not ultimately preserve or retain any of the fuses, fuse box, wiring or appliances or any item from the fire scene.”

12. Voluntary Undertaking
SPOLIATION
Voluntary Undertaking
“Also, Slouka ‘concluded that he on behalf of Rockford wanted no evidence to be preserved.’ These pleadings do not allege any affirmative action on defendants’ part evincing a voluntary undertaking to preserve evidence. If anything, they reflect that defendants passively possessed the subject property, conducted their investigation without preserving any particular evidence, and then had the property demolished. (citations omitted) (emphasis in the original).

13. THE SECOND PRONG OF THE DUTY ELEMENT
SPOLIATION
THE SECOND PRONG OF THE DUTY ELEMENT
If the plaintiff satisfies the relationship prong, the plaintiff must still show that “a reasonable person in the defendant’s position should have foreseen that the evidence was material to a potential civil action.” Id. There is no need to consider the second prong, foreseeability, if the plaintiff fails to establish the needed relationship. Dardeen, 213 Ill. 2d at 335 citing Andersen, 341 Ill. App. 3d at 215.

14. THE SECOND PRONG OF THE DUTY ELEMENT
SPOLIATION
THE SECOND PRONG OF THE DUTY ELEMENT
In Martin, the Illinois Supreme Court rejected the argument that the status of a potential litigant might satisfy the foreseeability prong.
Specifically, the Court held that Shimanovsky v. General Motors Corporation, 181 Ill.2d 112 (1998), which dealt with sanctions under Rule 219(c) for the destruction of evidence, that potential for future litigation was not sufficient to impose a tort duty in a spoliation action. Martin, at ¶¶

15. SPOLIATION THE CAUSATION ELEMENT
In order for there to be a claim for spoliation of evidence the “plaintiff must allege sufficient facts to support a claim that the loss or destruction of the evidence caused the plaintiff to be unable to prove an underlying lawsuit.” Boyd, 166 Ill.2d at 196. Applying this reasoning, in Midwest Trust Services, Inc. v. Catholic Health Partners Services, 292 Ill. App. 3d 204, 210 (1st Dist. 2009), the Court held that a claim for spoliation of evidence could not be stated in a medical malpractice case because the issue in such a case is whether the doctor breached the standard of care.

16. STATUTE OF LIMITATIONS
SPOLIATION
STATUTE OF LIMITATIONS
In Skridla v. GM, Co., 2015 IL App (2d) , the Illinois Appellate Court citing to Wofford v. Tracy, 2015 IL App (2d) and relying on the reasoning of Babich v. River Oaks Toyota, 377 Ill. App. 3d 425 (1st Dist 2007) and rejecting Schusse v. PaceSuburban Bus Division of Regional Transportation Authority, 334 Ill. App. 3d 960 (1st Dist. 2002) and  Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1st Dist. 1998), held that the statute of limitation for a spoliation claim is derivitive of the claim that underlies it.

17. STATUTE OF LIMITATIONS
SPOLIATION
STATUTE OF LIMITATIONS
The Schusse and Cammon court hold that the applicable statute of limitations for a spoliation claim is 5 years under 735 ILCS 5/ There is a split in the circuits. The Second District, in Skridla and Wofford hold the spoliation is derivative (with the qualifications below), while the First District holds it is 5 years. Eventually, the Illinois Supreme Court will have to decide this issue.

18. STATUTE OF LIMITATIONS
SPOLIATION
STATUTE OF LIMITATIONS
In Skridla, all but one of the underlying claims were personal injury claims for which the statute is two years. The wrongful death claim, which is also a derivative claim, was two years from the date of death, or: “The limitations period for a spoliation claim would seem to work similarly: as long as the underlying claim was not time-barred at the time of the destruction of the evidence, the limitations period for the spoliation claim begins running from that time.”

19. STATUTE OF LIMITATIONS
SPOLIATION
STATUTE OF LIMITATIONS
In order to deal with the concern that a claim for spoliation could run before the claim could be filed, the Skridla court held: “[w]e have alleviated this concern by suggesting that the limitations period for a spoliation claim begins to run not on the same day as that for the underlying claim, but on the day of the destruction of the evidence (or the day that the plaintiff discovers it), provided that the underlying claim itself was not time-barred on that day.”

20. SPOLIATION DEFENSE FOR INSURER
In addition, insurers would never be a party to a lawsuit brought by the plaintiffs because such direct actions against insurers are against Illinois public policy. Zegar v. Sears Roebuck & Company, 211 Ill. App. 3d 1025, (1st Dist. 1991).