Question: Are there penalties in a civil case for intentionally destroying evidence to ensure the other side can not get access to that evidence?
Answer: Yes, this type of action is call “spoliation” of evidence. Under Indiana law, there are important sanctions that not only provide remedy to persons aggrieved, but also deterrence to spoliation of evidence by litigants and their attorneys. It is well-established in Indiana law that intentional first-party spoliation of evidence may be used to establish an inference that the spoliated evidence was unfavorable to the party responsible. Potent responses also exist under Indiana Trial Rule 37(B) authorizing trial courts to respond to discovery violations with such sanctions “as are just” which may include, among others, ordering that designated facts be taken as established, prohibiting the introduction of evidence, dismissal of all or any part of an action, rendering a judgment by default against a disobedient party, and payment of reasonable expenses including attorney fees. Further, it should be noted that attorneys involved in destruction or concealment of evidence face penalties including disbarment. Additionally, the destruction or concealment of evidence, or presentation of false testimony may be criminally prosecuted as a Class D felony for perjury or obstruction of justice.