If You're Trying To Get Documents From A Kansas Resident, Subpoena First, Ask Questions Later

Kansas, like many other jurisdictions, does not recognize the tort of spoliation absent another independent tort, contract, agreement, voluntary assumption of a duty, or special relationship. Kansas has also held that neither a commercial relationship nor knowledge of pending litigation is the type of special relationship that creates a duty to preserve documents.

In Superior Boiler Works, Inc. v. Kimball, counsel for Superior sent a letter to counsel for one of its previous suppliers, Ferris Kimball Company, informing the company that Superior intended to subpoena FK’s sales records covering 15 years of sales to Superior relevant to pending litigation in which Superior was a defendant. FK immediately destroyed 3 pallets of boxes containing 70 years of sales records, including the records Superior intended to subpoena. 

Superior brought suit against FK and its principal, Kimball, who personally destroyed some of the records. Superior suggested it and FK had a special relationship based on FK’s knowledge of the pending litigation and FK’s longstanding commercial relationship with Superior. The Kansas Supreme Court held that simply being in the chain of distribution of a product or in the stream of commerce is not a special relationship that gives rise to a duty to preserve evidence. The Supreme Court also refused to recognize a new tort of spoliation in the case where the entity destroying evidence may become a party to ongoing litigation as a codefendant or third party defendant to an indemnity claim. The question of whether a potential adverse party destroys evidence is subject to a spoliation claim remains unanswered.

The full opinion in Superior Boiler Works, Inc. v. Kimball, may be found here.