Opinion
GEORGE, C. J. In Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 [74 Cal.Rptr.2d 248, 954 P.2d 511] (Cedars-Sinai), we concluded that no tort cause of action will lie against a party to litigation for the intentional destruction or suppression of evidence when the spoliation was or should have been discovered before the conclusion of the litigation. This case presents a related issue not resolved in Cedars-Sinai, namely whether a tort cause of action will lie against a person who is not a party in a lawsuit but who intentionally destroys or suppresses evidence that would be relevant in the lawsuit.
As we shall explain, many of the considerations that led us in Cedars-Sinai to decline to recognize a tort cause of action for spoliation apply with equal weight when the spoliation is committed by a third party. The doubtful benefit of the proposed tort remedy is outweighed by the prospect of a spiral of litigation giving rise to verdicts based upon speculation. In addition, it would be anomalous for a nonparty to be liable in damages, including punitive damages, for conduct that would not give rise to tort liability if committed by a party. We conclude that no tort cause of action will lie for intentional third party spoliation of evidence.
I
The present lawsuit arose out of surgery performed on January 16, 1995, on plaintiff Sandra Ramos at Temple Community Hospital (Hospital) in Los Angeles. Anesthesiologist K. Jackson placed Ramos under general anesthesia, and surgeon Jamshid Nazarian applied an electrocautery tool to Ramos’s right eyebrow. In her complaint in the underlying action, plaintiff alleges that the electrocautery tool caused oxygen used in the anesthesia to ignite, causing a fire that severely burned her face. She also alleges that Dr. [467]Nazarian’s records indicate that the electrocautery tool “failed” when a flame emerged from it, and that the flame ignited the oxygen.
Ramos alleges that her counsel made various efforts, beginning on January 23, 1995, to ensure the preservation of evidence. Specifically, she alleges that counsel requested that Hospital and the physicians retain the cautery instrument and “any other evidence that is relevant to causing this severe facial injury,” and further alleges that counsel requested permission to inspect that evidence and certain documentary evidence. Defendants, it is alleged, refused to permit inspection of the equipment used in the surgery.
In May 1995, Ramos filed a complaint in the Los Angeles County Superior Court, alleging tort causes of action against Hospital, the two physicians, and various manufacturers and distributors of medical equipment, as well as entities responsible for inspection and maintenance of medical equipment. Plaintiff alleged four causes of action against Hospital, which included professional malpractice, intentional and negligent spoliation of evidence, and general negligence. She also named her treating physicians in the first three of these causes of action. The remaining causes of action alleged various product liability, breach of warranty, and negligence claims against a number of other defendants. These claims involved the design and maintenance of medical equipment used in plaintiff’s care. In particular, plaintiff alleged a product liability cause of action against Valleylab, Inc., the manufacturer of the electrosurgical device used in plaintiff’s surgery. The trial court subsequently granted summary judgment in favor of Valley-lab because there was no evidence the electrosurgical device was defective, and because Valleylab had provided adequate warnings regarding the use of the device.1
Plaintiff alleges in the cause of action for intentional spoliation that Hospital knew of the existence of evidence such as the oxygen tank and mask, and the electrocautery tool used in the surgery, as well as related written records, knew that these items might constitute relevant evidence in potential litigation, knew of plaintiff’s potential products liability claims, and knew that Hospital was engaging in acts likely to cause the loss or concealment of such evidence. Plaintiff also alleges that Hospital caused the loss or concealment of this potential evidence by failing to provide plaintiff with timely access to this evidence, despite numerous requests by counsel, and that Hospital disposed of the oxygen tank that was the source of the [468]explosion. Plaintiff alleged that this conduct “caused the Plaintiff to sustain damage, namely that Plaintiff’s opportunity to discover and then prove her entitlement to compensation for injuries sustained as a result of the Accident was substantially interfered with. Because of this lost opportunity, Plaintiff has been deprived of the opportunity to establish her right in a judicial forum to receive reimbursement from the Defendants for such injuries.” Plaintiff sought compensatory and punitive damages in connection with this cause of action.
Defendant Hospital moved to strike portions of the complaint as irrelevant, particularly the references to plaintiff’s alleged attempts to obtain informal discovery before the filing of the complaint. Defendant Hospital also moved to strike plaintiff’s prayer for punitive damages in connection with the cause of action for intentional spoliation, because of plaintiff’s failure to comply with the requirements of Code of Civil Procedure section 425.13, subdivision (a) (hereafter section 425.13(a)), which provides that in medical malpractice actions, no claim for punitive damages shall be included in a complaint unless the court has determined there is a substantial probability the plaintiff will prevail on the claim.
Plaintiff opposed the motion, contending that her second cause of action for intentional spoliation of evidence was not subject to section 425.13(a), that there was no basis for striking other allegations contained in the complaint, and that her allegations were sufficient to state a claim for punitive damages in connection with the alleged intentional spoliation.
On September 5, 1995, the trial court denied Hospital’s motion to strike, concluding the alleged spoliation of evidence did not occur while Hospital was rendering professional medical services to plaintiff, thus rendering section 425.13(a) inapplicable.
On September 21, 1995, Hospital filed a petition for writ of mandate in the Court of Appeal, contending that the trial court had erred in determining that section 425.13(a) did not apply to plaintiff’s claim for punitive damages in connection with the cause of action alleging intentional spoliation of evidence. Hospital sought a writ of mandate to compel respondent court to vacate its order denying Hospital’s motion to strike and to enter a new order granting the motion. The Court of Appeal summarily denied the petition. Hospital petitioned this court for review of the order denying writ relief, and we granted review, transferring the matter to the Court of Appeal with directions to vacate its order and issue an alternative writ to be heard before that court.
Having issued the alternative writ, the Court of Appeal denied the petition for writ of mandate, concluding that section 425.13(a) does not apply to the [469]intentional spoliation of evidence alleged in the complaint. Thereafter, we granted Hospital’s petition for review to decide whether a tort cause of action should lie for intentional spoliation of evidence, and—in the event such a tort action lies—whether section 425.13(a) applies to plaintiff’s cause of action against Hospital for intentional spoliation of evidence.
We observe that plaintiff’s spoliation claim is a hybrid. She alleges that Hospital caused the loss of evidence relevant to all her claims—those against Hospital as well as those, for example, against Valleylab, Inc. To the extent plaintiff’s spoliation claim is based upon the allegation that Hospital intentionally destroyed or suppressed evidence relevant to plaintiff’s claims against Hospital, her claim is barred by our recent decision in Cedars-Sinai, and despite plaintiff’s disagreement with the holding in that recent case, we conclude there is no reason to reconsider it at this time. Assuming the remainder of the claim properly may be characterized as a third party spoliation claim because it involves spoliation of evidence relevant to plaintiff’s causes of action against the other defendants, we consider whether third party spoliation may give rise to a cause of action in tort.2
II
In order to determine whether a tort cause of action for intentional spoliation of evidence by a third party should be recognized, we consider first our recent decision in Cedars-Sinai, supra, 18 Cal.4th 1. In that case, although we emphasized that intentional spoliation of evidence is a “grave affront to the cause of justice and deserves our unqualified condemnation” (id. at p. 4), we declined to recognize a remedy in tort when the alleged intentional spoliation is committed by a party to the underlying litigation and the spoliation has or reasonably should have been discovered before the conclusion of the litigation. (Ibid.)
In Cedars-Sinai, supra, 18 Cal.4th 1, we weighed the benefit of recognizing the spoliation cause of action against the burdens and costs it would impose. First, we explained that to recognize the tort would contravene the long-standing policy of this court to limit collateral or ancillary tort claims arising out of litigation-related misconduct. (Id. at pp. 8-11.) We emphasized that sanctions within the original proceeding, as well as disciplinary and penal sanctions, and resort to the legislative process, are preferable to derivative litigation. (Id. at pp. 9, 11-13.) Furthermore, our discussion [470]recognized that even when sanctions within the lawsuit are not available, a tort remedy may be rejected on the ground that such a remedy would produce endless derivative litigation. For example, we pointed out that when perjury occurs in the course of the lawsuit, “creating a false picture of the evidence before the trier of fact” and “undermin[ing] the search for truth and fairness,” no civil action in tort will lie even if at trial the litigant is “ ‘overborne by perjured testimony.’ ” (Id. at pp. 9, 11.) Similarly, we noted that no tort action is recognized for the “concealment or withholding of evidence.” (Id. at p. 10.)
In the case of intentional spoliation of evidence by a party, we observed in Cedars-Sinai that a tort remedy appeared of limited utility in view of the nontort remedies that may compensate injured parties and punish and deter a party to litigation who indulges in such misconduct. First among these remedies is the evidentiary inference permitted by Evidence Code section 413, which permits the trier of fact to infer that evidence suppressed by a party was unfavorable to the party. (Cedars-Sinai, supra, 18 Cal.4th at pp. 11-12.) We also pointed to discovery sanctions prescribed by Code of Civil Procedure section 2023, disciplinary sanctions against attorneys guilty of spoliating evidence or of participating in the suppression of evidence, and the criminal sanction for spoliation of evidence provided by Penal Code section 135. (Cedars-Sinai, supra, 18 Cal.4th at pp. 12-13.)
Next, we observed in Cedars-Sinai that “[i]t seems likely that in a substantial proportion of spoliation cases the fact of harm will be irreducibly uncertain.” (Cedars-Sinai, supra, 18 Cal.4th at p. 13.) In these cases, “there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim’s favor.” (Id. at p. 14.) The elements of causation and damages, therefore, in the continuing absence of the spoliated evidence, would be nearly impossible to prove, and permitting a cause of action that necessarily would be based upon speculation and conjecture could burden the courts with claims that may be peculiarly productive of arbitrary and unreliable verdicts. (Id. at pp. 14-16.)
In addition, we pointed out that imposition of liability—including punitive damages—could cause significant burdens disproportionate to the merit of a particular claim or to the effectiveness of the tort remedy as a deterrent. Meritless claims easily could be brought, and the threat of liability might cause individuals and entities to engage in unnecessary and expensive record-retention policies. (Cedars-Sinai, supra, 18 Cal.4th at pp. 15-16.) Finally, we pointed out that if the spoliation claim were tried concurrently with the underlying litigation, there would be “a significant potential for jury [471]confusion and inconsistency,” whereas if the spoliation claim were brought after the conclusion of the underlying litigation, the result would be “duplicative proceedings” involving a “ ‘retrial within a trial’ ” and carrying the potential for inconsistent results. (Cedars-Sinai, supra, 18 Cal.4th at p. 16.)
In Cedars-Sinai we did not consider whether a tort remedy should be available for intentional spoliation of evidence by third parties. Many of the considerations that influenced us in Cedars-Sinai, however, guide us to conclude that no tort remedy should be available in such circumstances.3
We consistently have cautioned against expanding tort liability to include litigation-related misconduct other than malicious prosecution. (Rubin v. Green (1993) 4 Cal.4th 1187, 1199 [17 Cal.Rptr.2d 828, 847 P.2d 1044]; Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214 [266 Cal.Rptr. 638, 786 P.2d 365].) Our decisions have stressed the importance of encouraging parties to make their best effort to investigate and litigate their claims in a single proceeding, and have observed that “[t]o allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate our justice system.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 214.) Regulatory, criminal, and disciplinary sanctions, as well as legislative measures and sanctions available to litigants within the scope of the original lawsuit, frequently are of more utility than tort litigation in accomplishing the goals of deterring and punishing litigation-related misconduct. (See Rubin v. Green, supra, 4 Cal.4th at pp. 1198-1199; Silberg v. Anderson, supra, 50 Cal.3d at pp. 218-219; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 873-874 [254 Cal.Rptr. 336, 765 P.2d 498].)
As in the case of spoliation of evidence by a party, addressed in Cedars-Sinai, a cause of action for third party spoliation of evidence would constitute derivative litigation in which a party to the original lawsuit asserts that litigation-related misconduct affected the accuracy or reliability of the first judgment. The goal of having disputes resolved in a single proceeding whose outcome is final as to both of the parties would be undermined if a party who was disappointed in a verdict were permitted to bring a new lawsuit against a new party, claiming that the first lawsuit would have been won but for the new party’s destruction or suppression of evidence.
[472]It is not the finality of the underlying judgment itself that is threatened, either in the case of spoliation by a party or in the case of third party spoliation. The judgment in the underlying suit would not be vacated or overturned as a result of a subsequent tort claim for spoliation, whether committed by a party or by another, and in both instances the alleged wrong is the spoliation—which is not necessarily addressed in the underlying litigation. Yet in Cedars-Sinai, we pointed with disapproval to the endless round of litigation, derivative to the first lawsuit, that would be provoked by recognition of the spoliation tort (Cedars-Sinai, supra, 18 Cal.4th at pp. 9-11), and recognized a need for “finality of adjudication.” (Id. at p. 10.) The same concern applies to third party spoliation. We are reluctant to provide disappointed litigants a second opportunity to seek the compensation they sought in the original lawsuit, even if they seek it against a party not involved in the original lawsuit. We also are reluctant to require courts to provide a forum for parties who seek to avoid the effect of a prior judgment by asserting that a collateral wrong improperly affected the verdict. The spoliation tort not only would provide the disappointed litigant a second opportunity to seek compensation, it would require retrial of the first case in order to permit the plaintiff to demonstrate in what respect the alleged spoliation altered the outcome of the first trial. Indeed, the matter might still continue, for spoliation in the second trial might give rise to yet a third lawsuit.
Although these considerations apply primarily to actions brought after the conclusion of the underlying litigation, different problems occur in the event the spoliation claim were to be tried concurrently with the underlying litigation. Such a claim would have to be alleged, as in the present case, before discovery had disclosed whether the allegedly spoliated evidence actually had been destroyed or whether its loss is significant. These circumstances would lead to the bringing of premature and meritless claims—a situation that in turn might lead to later derivative claims of malicious prosecution. Further, as we pointed out in Cedars-Sinai, concurrent litigation of the claims would give rise to a “significant potential for jury confusion and inconsistency.” (Cedars-Sinai, supra, 18 Cal.4th at p. 16.)
Our desire to avoid derivative litigation is not limited to that premised upon misconduct allegedly committed by a party to litigation. As we recognized in Cedars-Sinai, perjury by a witness, though it distorts the factfinding process and unfairly may deprive a litigant of compensation for wrong, is not actionable in tort. (Cedars-Sinai, supra, 18 Cal.4th at p. 9; Taylor v. Bidwell (1884) 65 Cal. 489, 490 [4 P. 491].) Similarly, a tort claim will not lie for the concealment or withholding of evidence. (Cedars-Sinai, supra, 18 Cal.4th at p. 10.) As we stated: “ ‘[W]e think it is settled beyond controversy [473]that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony.’ ” (Id. at pp. 10-11.) When a party is unable to expose perjury at trial “ ‘he is without remedy. The wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.' ” (Id. at p. 11, italics added.)
Third party spoliation of evidence is analogous to perjury by a witness, and the same, endless spiral of lawsuits over litigation-related misconduct could ensue were we to recognize a tort cause of action for third party spoliation. As in the case of spoliation by a party, one party unfortunately may be deprived of critical evidence and of a defense, or remain uncompensated for an injury. This potential injustice cannot be avoided, however, if we are to escape what we have identified as the greater harm of subjecting parties, witnesses, and the courts to unending litigation over the conduct and outcome of a lawsuit.
We acknowledge that perjury and spoliation are distinguishable in the sense that if pequry is discovered before or during trial, it may be possible to expose the falsehood through cross-examination, whereas the absence of evidence that has been suppressed by a nonparty sometimes may foreclose a claim altogether. Nonetheless, our desire—for the benefit of litigants, witnesses, and the courts—to avoid endless litigation makes us reluctant to permit a party who is disappointed in the verdict in one case to have a second opportunity to obtain compensation or other relief from a new defendant whose spoliation of evidence assertedly brought about the disappointing verdict on the underlying claim. As noted, to the extent it is asserted that spoliation could be litigated and compensated in one unitary action, the same potential for meritless claims and confusion of the jury exists in third party spoliation situations as we recognized in Cedars-Sinai in the case of spoliation by a party.
In addition, to the extent that a real problem of intentional spoliation by third parties exists, it often will be the case that such spoliation will be exposed in the trial of the underlying action. First, in many instances the third party spoliator actually may not be a total stranger to the litigation, for little motivation for intentional spoliation exists when the third party is wholly divorced from the litigation. As in the present case, defendant’s action as a first party spoliator may be subject to exposure at trial and may affect the verdict so that the plaintiff will obtain the compensation to which [474]he or she is entitled. Second, if the third party spoliator is acting at the behest of a party, a negative inference may be drawn against that party (see, e.g., People v. Williams (1997) 16 Cal.4th 153, 200-201 [66 Cal.Rptr.2d 123, 940 P.2d 710]; People v. Kendall (1952) 111 Cal.App.2d 204, 213 [244 P.2d 418]; see also Nally v. Volkswagen of America, Inc. (1989) 405 Mass. 191 [539 N.E.2d 1017, 1021] [excluding testimony of expert who lost or destroyed evidence]; Katz & Muscaro, Spoilage of Evidence—Crimes, Sanctions, Inferences, and Torts (1993) 29 Tort & Ins. Law J. 51, 57-58), and the full panoply of discovery sanctions may apply against the party under certain circumstances. (Code Civ. Proc., § 2025, subds. (j)(3), (o).) Finally, although a plaintiff could not rely upon the evidentiary inference permitted by Evidence Code section 413 to prove his or her case when spoliation is committed by a nonparty acting independently, such a plaintiff could bring before the jury the fact that relevant evidence intentionally was destroyed by another, in order to rebut any contention that the plaintiff’s failure to produce the evidence would support an inference that the evidence was adverse to plaintiff’s cause. (See Evid. Code, § 412 [“If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.”].)
Another consideration that weighed heavily in Cedars-Sinai—the uncertainty of the fact of harm arising from spoliation—is equally applicable in third party spoliation. As in the case of spoliation of evidence by a party, in the case of third party spoliation “[i]t seems likely that in a substantial proportion of spoliation cases the fact of harm will be irreducibly uncertain. In such cases, even if the jury infers from the act of spoliation that the spoliated evidence was somehow unfavorable [to a party], there will typically be no way of telling what precisely the evidence would have shown and how much it would have weighed in the spoliation victim’s favor. Without knowing the content and weight of the spoliated evidence, it would be impossible for the jury to meaningfully assess what role the missing evidence would have played in the determination of the underlying action. The jury could only speculate as to what the nature of the spoliated evidence was and what effect it might have had on the outcome of the underlying litigation.” (Cedars-Sinai, supra, 18 Cal.4th at pp. 13-14.)
Not only the fact of injury, but also the element of causation would be an intractable element of proof. Assuming injury, the extent to which the destruction of evidence caused a different result in the underlying litigation frequently would be a matter of speculation, given the discretion vested in the court and the jury. (See Federated Mut. v. Litchfield Prec. Comp. (Minn. 1990) 456 N.W.2d 434, 438.) In addition, it may be difficult to identify [475]whether the spoliation caused damage to the defendant or to the plaintiff in the underlying litigation. When the spoliator is not acting at the behest of a party, both parties in the underlying litigation may be victimized by the destruction of evidence, and in the absence of the evidence it is difficult to determine which party has been affected more adversely. We are reluctant to have courts provide compensation when it is so difficult to determine who has suffered the loss.
Moreover, as noted, the same potential for jury confusion and for inconsistency would ensue if third party claims were litigated simultaneously with the original litigation, and in a separate action there would be the same “duplicative proceedings without avoiding the potential for inconsistent results. The spoliation action would require a ‘retrial within a retrial,’ for all of the evidence in the underlying action would have to be presented again so that the spoliation jury could determine what effect the spoliated evidence would have had in light of all the other evidence.” (Cedars-Sinai, supra, 18 Cal.4th at p. 16.)
We observe that when our lower courts originally—and mistakenly— recognized a cause of action for intentional spoliation of evidence by a party to litigation, they did so in large part because they considered the cause of action to be analogous to the tort of intentional interference with prospective economic advantage. (See Smith v. Superior Court (1984) 151 Cal.App.3d 491, 501 [198 Cal.Rptr. 829], disapproved in Cedars-Sinai, supra, 18 Cal.4th at p. 18, fn. 4.) The potential verdict was considered to be a probable future economic benefit, and equally deserving of protection from interference as the probable expectancy protected by the tort of intentional interference. We note that, as in the present case, the defendant in an alleged case of interference with prospective economic advantage is a third party to the business relationship that he or she disrupts. Nonetheless, “[w]e have been cautious in defining the interference torts [interference with contract and interference with prospective economic advantage], to avoid promoting speculative claims. Thus ... we refused to recognize the cause of action in the sporting context [and we] also refused to extend the tort to protect expectancies beyond those involved in ordinary commercial dealings—a person’s expectancy in the outcome of a government licensing proceeding is not protected against outside interference. [Citation.]” (Pacific Gas & Electric Co. v. Bear Steams & Co. (1990) 50 Cal.3d 1118, 1136-1137 [270 Cal.Rptr. 1, 791 P.2d 587], italics added.) As we have seen, the injury in the case of spoliation is speculative. A litigant’s expectancy in the outcome of litigation is peculiarly uncertain, being subject to the discretion of court and jury. Whether interference with the prospective advantage of prevailing in a lawsuit is committed by a party to the litigation or instead by a stranger to [476]the litigation, the claimed fact of damage—loss or impairment of a hoped-for civil verdict—is equally speculative.
In addition, the burdens and costs of recognizing a tort remedy for third party spoliation are considerable—perhaps even greater than in the case of first party spoliation. The same burdens identified in Cedars-Sinai exist, namely, jury confusion and the potential for abuse in bringing the action and for inaccurate and arbitrary verdicts, magnified by the potential for punitive damages (see Cedars-Sinai, supra, 18 Cal.4th at p. 15), as well as the obvious burden to the judicial system, litigants, and witnesses, inherent in derivative litigation. Beyond these burdens, in the case of third party spoliation additional burdens arise from the circumstance that the class of potential plaintiffs and defendants is greatly expanded. As noted, both parties in the underlying litigation may be injured by a third party’s single act of destruction of evidence, thereby giving rise to two claims with potentially inconsistent or duplicative verdicts. In the products liability situation, for example, a manufacturer held partially liable for the plaintiff’s injury may claim injury arising from spoliation, while the plaintiff in the underlying litigation may claim that but for the spoliation, his or her recovery would have been greater. In addition, although spoliation claims between parties have an inherently limited number of potential defendants, if spoliation by nonparties were actionable in tort, the cast of potential defendants would be much larger. We believe the broad threat of potential liability, including that for punitive damages, might well cause numerous persons and enterprises to undertake wasteful and unnecessary record and evidence retention practices. Medical providers, for example, might feel constrained to retain contaminated surgical devices and byproducts of medical procedures out of fear of liability.
We recognize that the salient distinction between first party and third party spoliation of evidence is the disparity in sanctions available within the confines of the underlying litigation. In the case of first party spoliation, these sanctions serve not only to deter spoliation of evidence, but may promote compensation for the underlying injury in spite of the absence of the spoliated evidence. The evidentiary inference permitted by Evidence Code section 413 in the case of willful suppression of evidence by a party, as well as most discovery sanctions, ranging from issue preclusion to dismissal, are not available when a person who is not a party to the litigation and who is not an agent of a party intentionally has destroyed evidence.
The victim of third party spoliation, however, is not entirely helpless. Some discovery sanctions are available to punish third party spoliation, including monetary and contempt sanctions against persons who flout the [477]discovery process by suppressing or destroying evidence. (See Code Civ. Proc. §§ 2020, subd. (h), 2023, subd. (b)(1),(5), 2025, subds. (j)(3), (o); see Brun v. Bailey (1994) 27 Cal.App.4th 641, 658-659 [32 Cal.Rptr.2d 624] [reference to “any person” in statute imposing discovery sanctions permits sanctions against nonparty].) A criminal sanction remains available under Penal Code section 135, as are disciplinary sanctions against attorneys who may be involved in spoliation. As we have pointed out, the victim of third party spoliation may deflect the impact of the spoliation on his or her case by demonstrating why the spoliated evidence is missing. (See Evid. Code § 412.) It also may be possible to establish a connection between the spoliator and a party to the litigation sufficient to invoke the sanctions applicable to spoliation by a party. (Code Civ. Proc. § 2025, subds. (j)(3), (o).)
We do not believe that the distinction between the sanctions available to victims of first party and third party spoliation should lead us to employ the burdensome and inaccurate instrument of derivative tort litigation in the case of third party spoliation. We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. To the extent third parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty. Criminal sanctions, of course, also remain available.
If existing remedies appear limited, that may well be because third party spoliation has not appeared to be a significant problem in our courts. After all, the nonparty who is not acting on behalf of a party but is independently motivated to destroy evidence with the intent to interfere in the outcome of litigation between other parties must be a rarity, perhaps because such destruction can subject the nonparty to criminal prosecution.
Finally, our conclusion that recognition of a tort cause of action for intentional third party spoliation would be unwarranted is strengthened by the realization how anomalous it would be to impose such liability— including potential punitive damages—upon those spoliators who are third parties to litigation, when we have concluded in Cedars-Sinai that tort liability for spoliation should not be imposed upon litigants who engaged in such behavior to obtain an advantage in their own litigation. In the present case, for example, it would be a strange outcome indeed to hold that Hospital may not be held liable as a defendant in a tort action for destroying evidence relevant to plaintiff’s medical malpractice claim against Hospital, [478]but that it might be liable in punitive damages as a third party for the same act of destruction, because the evidence in question also was relevant to plaintiff’s separate products liability claim against the manufacturer of the equipment.
In sum, we conclude that the benefits of recognizing a tort cause of action, in order to deter third party spoliation of evidence and compensate victims of such misconduct, are outweighed by the burden to litigants, witnesses, and the judicial system that would be imposed by potentially endless litigation over a speculative loss, and by the cost to society of promoting onerous record and evidence retention policies.4
Plaintiff contends that her constitutional right of free access to the courts bars private persons from destroying objects of potential relevance to a lawsuit, and requires that we recognize a spoliation cause of action against nonparties as well as parties to the litigation. Plaintiff cites cases discussing a litigant’s right of access to the courts, but these opinions do not suggest that recognition of this right requires that private persons be barred from disposing of objects that may prove to be relevant in a lawsuit, nor that this right includes a constitutional right to hold the offending private party accountable under common law tort principles for its destruction of evidence. We are unaware of any authority investing parties to litigation with a constitutional right to sue other private persons in a common law tort action for interference with the party’s ability to prevail in a lawsuit. (See, e.g., Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 125-126 [216 P.2d 825, 13 A.L.R.2d 252].)5
III
We reverse the judgment of the Court of Appeal denying the petition for writ of mandate and remand the cause to the Court of Appeal for further proceedings consistent with this opinion.
Baxter, J., Chin, J., and Brown, J., concurred.
We grant plaintiff’s request for judicial notice to the extent it requests that we take notice of the trial court’s order granting Valleylab’s motion for summary judgment. (Evid. Code, § 452, subd. (d).) In all other respects, the parties’ requests for judicial notice are denied because the material submitted for our notice is irrelevant.
As in Cedars-Sinai, supra, 18 Cal.4th 1, we decide the issue despite the circumstance that below, the parties assumed that California tort law recognized the existence of a cause of action in tort for intentional spoliation of evidence. (Id., at pp. 6-7, and fn. 2.) The issue is one of public importance, is presented by the case before us, and has been fully argued in this court.
As in Cedars-Sinai, supra, 18 Cal.4th 1, we are not called upon to determine whether a tort cause of action will lie for negligent spoliation of evidence, so there is no need to discuss recent cases cited by the parties discussing such a tort claim. (See Johnson v. United Services Automobile Assn. (1998) 67 Cal.App.4th 626 [79 Cal.Rptr.2d 234] [negligent spoliation of evidence]; see also Galanek v. Wismar (1999) 68 Cal.App.4th 1417 [81 Cal.Rptr.2d 236] [legal malpractice claim based upon negligent spoliation of evidence].)
Of course, in light of our conclusion that a cause of action for intentional spoliation of evidence by a third party does not exist, no punitive damages claim will lie with respect to the second cause of action alleged in plaintiff’s complaint, regardless whether she complied with section 425.13(a). Accordingly, we do not consider the contentions of the parties with respect to the applicability of that statute to the present case.
Plaintiff’s reference to a potential violation of 42 United States Code section 1985(2) is misplaced because plaintiff, in her complaint, made no attempt to allege a violation of that provision.