Spoliation, tort or amended complaint?

[NeilTheCop]

What is the name of your state (only U.S. law)? New Mexico.

I'm still plodding on with my case pro se but it has now taken an interesting turn.
The attorney representing the defendants finally gave me all the discovery I asked for. Problem is that it shows spoliation of much of the evidence I will need.
So do I file a separate tort claim, and if I do can it be added as a necessary joinder, or do I just file a pleading asking for the court to accept an amended complaint with the spoliation added?
By the way I checked and the New Mexico Supreme Court decision of Coleman v. Eddy Potash, Inc. 1995 allows a tort claim for spoliation

 

[FlyingRon]

Please go back to your previous thread and ask the question there. We are disimclined to go searching all over this forum to find the pertinent details necessary. You post as it stands makes no sense at all.

 

[NeilTheCop]

Please go back to your previous thread and ask the question there. We are disimclined to go searching all over this forum to find the pertinent details necessary. You post as it stands makes no sense at all.

I would but I can't find my original post. It has been a while.

 

[quincy]

I would but I can't find my original post. It has been a while.

From newest to oldest:

https://forum.freeadvice.com/civil-litigation-46/what-next-626337.html

https://forum.freeadvice.com/civil-litigation-46/talking-press-618706.html

https://forum.freeadvice.com/legal-ethics-lawyer-malpractice-89/can-i-prosecute-495606.html

How does spoliation of evidence fit in with your case as described previously?

 

[NeilTheCop]

Thank you so much.
A cut and paste from one of my postings

A brief overview.
I was assigned to the property room. As was normal practice I researched cases where we had a lot of property associated with the case taking up room. One of the cases from 2012 involved a very large amount of hydroponic equipment that was taken during a search warrant. Case was conclude, the accused had plead and was nearing the end of his jail term. I contacted the case agent and told him I would be destroying the equipment because it was classed as drug paraphernalia and had been used to grow marijuana. Case agent told me to return all of it to the family of the accused. I said no, because that would be an illegal act. He got pissed. My immediate supervisor told me to get rid of it. Wrote a destruction order, had it checked an approved by the city attorney, got it signed by a District Court judge and had it destroyed.
The case agent made a formal complaint against me.
Had an interview with the internal affairs officer. This was very brief as the case agent making the complaint and the internal affairs officer were one in the same. They assigned a very good friend of the case agent to conduct the investigation, which was a foregone conclusion.
Demoted, 14 days without pay and put on the night shift. Then a definite effort to make my life difficult by the administration, so I quit.
Had a hearing with the Department of public safety, who are responsible for certification and LEO integrity. They exonerated me of any wrongdoing and confirmed that the case agent had given me an unlawful order.


The spoliation.
I received the discovery I asked for.
From officer and detective reports I found that there were 5 agents from the drug task force at the scene. Either none of them made a report they all went missing.
The narc sergeant said it was the biggest marijuana grow he had ever seen, but CSI only took 8 photos of 2 separate grow rooms, or I was only given 8.
The CSI Detective who took the photos either didn't make a report or it went missing.
A CID detective in his report described marijuana plants hanging up to dry. No cut marijuana plants were on any property sheet or photographs.
At the DPS hearing one of the narc agents also said that there were marijuana plants hanging up drying, but he had no idea what happened to them.

There's more, but this give you an idea why I suspect that evidence relating to my case has been tampered with.

 

[quincy]

The spoliation.
I received the discovery I asked for.
From officer and detective reports I found that there were 5 agents from the drug task force at the scene. Either none of them made a report they all went missing.
The narc sergeant said it was the biggest marijuana grow he had ever seen, but CSI only took 8 photos of 2 separate grow rooms, or I was only given 8.
The CSI Detective who took the photos either didn't make a report or it went missing.
A CID detective in his report described marijuana plants hanging up to dry. No cut marijuana plants were on any property sheet or photographs.
At the DPS hearing one of the narc agents also said that there were marijuana plants hanging up drying, but he had no idea what happened to them.

There's more, but this give you an idea why I suspect that evidence relating to my case has been tampered with.

For the intentional spoliation of evidence claim recognized in New Mexico, there must be a duty to preserve the evidence (the duty arising through specific request or through foreseeability that evidence is material to potential civil action); a breach of that duty through intentional loss or destruction; the intentional loss or destruction must proximately cause plaintiff the inability to prove his/her underlying claim; actual damage occurred as result.

An intentional spoliation claim is a "but for." But for the loss or destruction of evidence, there is/was a reasonable probability you could have/would have won your claim.

I am having a difficult time seeing how you can support a spoliation of evidence claim, based on what you have said in your posts/threads.

 

[NeilTheCop]

For the intentional spoliation of evidence claim recognized in New Mexico, there must be a duty to preserve the evidence (the duty arising through specific request or through foreseeability that evidence is material to potential civil action); a breach of that duty through intentional loss or destruction; the intentional loss or destruction must proximately cause plaintiff the inability to prove his/her underlying claim; actual damage occurred as result.

An intentional spoliation claim is a "but for." But for the loss or destruction of evidence, there is/was a reasonable probability you could have/would have won your claim.

I am having a difficult time seeing how you can support a spoliation of evidence claim, based on what you have said in your posts/threads.

Because only select parts of the evidence has gone 'missing', the parts that could show that a backroom deal was done between the narcs and the suspect which I believe is the underlying reason that I was demoted. And as I've said there is more.

But to return to my original question

Do I file a separate tort claim, and if I do can it be added as a necessary joinder, or do I just file a pleading asking for the court to accept an amended complaint with the spoliation added?

 

[quincy]

... Do I file a separate tort claim, and if I do can it be added as a necessary joinder, or do I just file a pleading asking for the court to accept an amended complaint with the spoliation added?

I fear you are confusing spoliation of evidence with failure to produce all of the documents requested.

Have you thought about filing a motion to compel specific discovery?

New Mexico Local Rules of Civil Procedure: http://www.nmd.uscourts.gov/sites/nmd/files/local_rules/2014-December-01_Local Rules of Civil Procedure_Amended 12.1.2014_0.pdf

 

[NeilTheCop]

I fear you are confusing spoliation of evidence with failure to produce all of the documents requested.

Have you thought about filing a motion to compel specific discovery?

Thank you for the suggestion, and I shall.
But while going through all the documents given to me during discovery I have found something very odd and would like your input before I go off the deep end.
As part of my original destruction order I retained a few items for department use. Common practice and perfectly acceptable re. department policy. I filed, as part of the case a case supplemental report giving dates, times and the items retained.
The discovery I received from the defendants attorney gave me 2 copies of this report, my original dated 5/30/14 and another that had been handwritten over the original showing these items had been returned to a named person. The named person had refused to sign for the items but the Sergeant who made the complaint against me still returned them and he had signed the report. This on it's own is odd as there is a specific form for property returns and if someone won't sign for property policy says they don't get it.
Now the kicker. At the bottom of both reports is a space labeled 'Investigator signature'. My original was unsigned, but the copy with the handwriting on it has my signature. The second copy was dated 7/15/14 which was after I had left the department.
I didn't sign it, well I couldn't as I had quit.
So would this be spoliation as it involves my case directly?

 

[quincy]

... At the bottom of both reports is a space labeled 'Investigator signature'. My original was unsigned, but the copy with the handwriting on it has my signature. The second copy was dated 7/15/14 which was after I had left the department.
I didn't sign it, well I couldn't as I had quit.
So would this be spoliation as it involves my case directly?

Spoliation is the intentional destruction of, or the significant and meaningful alteration of, evidence. Where spoliation can be shown, an inference unfavorable to the party responsible for the spoliation can be drawn.

I think you will need a handwriting expert if you expect to show that your name was forged. And you will need to demonstrate that this forged signature on the copy of the report has some relevance to your case as a whole.

 

[NeilTheCop]

Spoliation is the intentional destruction of, or the significant and meaningful alteration of, evidence. Where spoliation can be shown, an inference unfavorable to the party responsible for the spoliation can be drawn.

I think you will need a handwriting expert if you expect to show that your name was forged. And you will need to demonstrate that this forged signature on the copy of the report has some relevance to your case as a whole.

Why a handwriting expert, he would only compare signatures?
My signature is absent from the original but is on the copy supposedly signed by me after I was no longer at the department.
I have sent an e-mail to the defendants attorney requesting an appointment to view the originals.
As for relevance I was demoted for destroying the other evidence associated with this case and these items are part of that case.

 

[Zigner]

As for relevance I was demoted for destroying the other evidence associated with this case and these items are part of that case.

I'm not sure how an item that you did not destroy helps (or hurts) your case with regard to items you are said to have destroyed?


You really need an attorney.

 

[NeilTheCop]

I'm not sure how an item that you did not destroy helps (or hurts) your case with regard to items you are said to have destroyed?


You really need an attorney.

And would I need to explain to the attorney how my signature can magically appear on a document when I physically could not have signed the document.

Forgery

The action of forging a copy or imitation of a document, signature, banknote, or work of art:

My signature has been placed at the bottom of a document where items that belong to the police department were given to a person who refused to sign his name.

Having to explain the obvious is why I have no faith in attorneys.

 

[Zigner]

And would I need to explain to the attorney how my signature can magically appear on a document when I physically could not have signed the document.

Forgery

The action of forging a copy or imitation of a document, signature, banknote, or work of art:

My signature has been placed at the bottom of a document where items that belong to the police department were given to a person who refused to sign his name.

Having to explain the obvious is why I have no faith in attorneys.

You need to be able to explain the relevancy in court.

 

[quincy]

Why a handwriting expert, he would only compare signatures?
My signature is absent from the original but is on the copy supposedly signed by me after I was no longer at the department.
I have sent an e-mail to the defendants attorney requesting an appointment to view the originals.
As for relevance I was demoted for destroying the other evidence associated with this case and these items are part of that case.

If you are questioning that it is your signature on the copy, you need to show it is not your signature. Saying it is not your signature will probably not be enough to prove that it isn't.

But, whatever the case, I still do not see how this (or how a lot of what you want to use as evidence) fits into the whole of your legal action (and I remain a bit unclear what your whole legal action is about, as well).

I agree with Zigner (and I believe this has been mentioned more than once?) that you need an attorney in your area to start helping you. If you are only at the discovery stage and are having problems, I fear you will not fare well when/if this matter is before the court.