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Witherspoon • Kelley Wins Spoliation Appeal: Cloninger v. Chen, et al., 184 Wn. App. 1041 (2014)

Nick Pecoraro

Given the ever-increasing volume and variety of data storage issues facing American companies, the appeal of Cloninger v. Chen, et al. carried high stakes and broad implications.  Cloninger was a wrongful death/medical negligence case against an anesthesiologist and a local hospital.  The corporate negligence allegations against the hospital included a spoliation of evidence for failure to retain data from a physiologic monitor.  On appeal from a defense verdict, plaintiffs asked the court to eliminate intent as a necessary element in claims for spoliation.  The plaintiffs were additionally advocating for a rule that would allow a spoliation claim based solely upon the belief that relevant data may have been lost. 

On behalf of the hospital defendant, Witherspoon • Kelley successfully preserved the law intact. The Court of Appeals held that spoliation claims are available only where the claimant shows both: (i) that relevant data, in fact, existed and was lost; and (ii) that the data was lost due to intentional acts or knowing failure to act by the defendant.