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In Reynolds v. Bordelon, 2014-2362 (La. 6/30/15), — So.3d—, 2015 WL 3972370, the Louisiana Supreme Court definitively ruled that Louisiana law does not recognize a cause of action for negligent spoliation of evidence. This resolved a disputed issue of Louisiana law.

The Reynolds plaintiff was involved in a multi-car accident in which his airbag failed to deploy. His insurance company paid what was owed for the totaled vehicle under its policy and, in the normal course of business, disposed of the vehicle by auctioning it to a salvage yard. Plaintiff’s petition included a claim against the auto manufacturer for the airbag failure. It also included a claim against his insurance company and the salvage yard for failure to preserve the vehicle as evidence likely to be used in litigation.

The Supreme Court classified the insurer and salvage yard as "third parties" to the lawsuit and categorized the plaintiff's claims against them as a negligent spoliation theory. In rejecting these third-party claims, the Court declared a claim for negligent spoliation to be against Louisiana public policy.

First, the tort would not deter future conduct, but would instead penalize a party unaware of potential wrongdoing. Second, liability for such a tort would be based upon great speculation regarding the value of the evidence at issue. Lastly, it would create unnecessary litigation and place a substantial burden upon society as a whole because third parties not even aware of litigation would be required to adopt cumbersome retention policies to reduce exposure to liability.

To prevent spoliation of evidence by third parties, a plaintiff who anticipates litigation should instead enter into an agreement with the third party or obtain a court order to preserve the evidence. By doing so, the plaintiff preserves a potential breach of contract claim regarding the evidence or can seek remedies for violation of the court order in the event the evidence is lost or destroyed.

Under Reynolds, the plaintiff cannot assert a claim for negligent spoliation of evidence. However, the Court confirmed that discovery sanctions and criminal sanctions remain viable against “first parties” who intentionally destroy evidence, Further, third parties may still be liable if a plaintiff can demonstrate a breach of a contract to preserve the evidence.

Sometimes, a number of people or parties will file claims, in which each party alleges the same or similar injuries that were caused by the same or similar conduct. In these circumstances, federal and Louisiana law recognize class actions as procedural devices that can be used to aggregate the parties’ claims into a single action.

The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable to the representatives who bring the action. However, this res judicata effect also applies to all others who are “similarly situated,” provided they are given adequate notice of the pending class action and do not timely exercise the option to exclude themselves from the class. Class actions are commonly filed in matters that involve common facts and damages such as plant explosions, claims based upon allegedly defective products, or claims involving employment practices or civil rights violations.

Before a court can hold a trial on the merits of a class action, the court must determine whether all of the procedural requirements are met for certification of the class. In making this determination, the court rules on whether the matter may proceed as a class action or whether the named parties must bring individual claims. In Louisiana, the threshold requirements for class certification are found in La. C.C.P. art. 591(A), which provides:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

Every one of these requirements must be met for an action to be maintained as a class action. Stated differently, the class cannot be certified if even one of these threshold requirements is not met. A party seeking class certification must also establish one of the additional requirements outlined in La. C.C.P. art. 591(B).

In Doe v. Southern Gyms, LLC, the Louisiana Supreme Court held that a court must conduct a “rigorous analysis” of the class certification requirements, to ensure that every one of them are satisfied before a case is certified as a class action. Moreover, it is the plaintiff’s burden to prove that every requirement of La. C.C.P. art. 591 is satisfied. While only the procedural requirements for class certifications are relevant to determine if a matter should be certified, the “rigorous analysis” required of the court oftentimes requires analysis of the overlapping merits of the plaintiff’s underlying claim. See Wal-Mart Stores, Inc. v. Dukes.

Whether a matter should be certified as a class action is often a contested issue involving high stakes. If it is certified, the matter proceeds as a class action, where the claims are asserted on behalf of the entire class and can result in substantial damage awards. If the matter is not certified, the claim representatives must pursue their claims individually, which leads to significantly less exposure for defendants named in the action.

Case References:

Doe v. Southern Gyms, LLC, 2012-1566 (La. 3/19/13), 112 So.3d 822, 829.
Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011).

The country was recently captivated by the Johnny Depp and Amber Heard trial, arguably the most high-profile defamation case in recent history. Following a colorful trial, a Virginia jury found that a 2018 Washington Post op-ed by Heard defamed Depp. As a result, Depp was awarded $10 million in compensatory damages and $350,000 in punitive damages. At the same time, the jury awarded Heard $2 million dollars in compensatory damages for defamatory statements made by one of Depp’s attorneys, ostensibly on Depp’s behalf. The trial had millions of people asking a number of different questions, including the basic question “What is defamation?” Recent Louisiana cases such as Yanong v. Coleman, 53-933 (La. App. 2 Cir. 5/17/21), 317 So. 3d 905, 911, reh’g denied (June 24, 2021), writ denied, 21-01107 (La. 11/10/21), 326 So. 3d 1249 help to provide an answer.

As explained in Yanong, a party claiming defamation in Louisiana must prove four elements:

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication to a third party;

(3) fault (negligence or greater) on the part of the publisher; and

(4) resulting injuries.

**To prove the third element of “fault,” malice must be shown.

The Yanong court explained that claims of defamation must be balanced against the right to free speech found in the state and federal Constitutions.

Louisiana recognizes two categories of defamatory words: (1) words that are defamatory per se and (2) words that are defamatory in meaning. Id. at 9. Words that are defamatory per se “expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances.” Id. When words are deemed defamatory per se, there is a presumption of fault on the part of the defendant that may be rebutted by showing that the statement was true or protected by a privilege such as fair commentary on a matter of public concern. Id. Words that are defamatory in meaning are words that, when taken in context, “a listener could have reasonably understood the communication to have been intended in a defamatory sense.” Id. at 9-10. Proof of words that are defamatory in meaning creates no presumption of fault.

Louisiana defamation suits frequently arise in the employment context. However, defamation claims in the employment context face obstacles. Such cases sometimes fail on the second element, publication to a third party, because “inter-corporate communications…[are] merely a communication of the corporation itself,” meaning an employer may need to communicate the alleged defamatory statement to an outside third party outside for it to be considered “published to a third party.” Cook v. Par. Of Jefferson, 2022 WL 19350, at *11 (E.D. La. Jan. 3, 2022). However, defamation claims do not always fail on the publication element and they are not limited to “A-list” celebrities or multi-million dollar cases.

In Yanong, the Louisiana Second Circuit affirmed a $15,000 compensatory damage award to a plaintiff who successfully proved that statements made by defendants on a podcast show and on Facebook were defamation per se. Yanong, p. 8. Under the facts of the case, the defendants on a live “podcast” expressed on multiple occasions their belief that the plaintiff was a victim of sex-trafficking and that she was purchased by her much-older husband. Id. at 1. The defendant(s) also labeled the plaintiff’s marriage as “legalized prostitution,” and stated that they had contacted foreign authorities to inform them the plaintiff was a victim of “trafficking.” Id. at 2. The statements continued onto social media, where one defendant insinuated the plaintiff’s husband purchased her from a catalogue or an internet matchmaking site. Id.

On appeal, the defendants argued the plaintiff did not prove the publication element of her case. Id. at 5. The appellate court found this contention meritless. The defendants “were fully aware they were engaging” in communications with third parties, they were recoding a podcast, were “shown onscreen on all the broadcasts,” and made comments that showed “they were aware that they had an audience and third parties were engaged in the interactive broadcast.” Id. at 17-19. Thus, the Second Circuit found Plaintiff met her burden on the publication element and affirmed the trial court’s judgment. Id. at. 20.

While the publication element can present a hurdle in some cases, the publication need not be in a national media source as featured in the Depp-Heard case. The Yanong decision reminds that statements made on social media and podcasts can meet the required standard.

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