A defendant or at fault party cannot destroy evidence. It is the duty of a party not to take action that will cause the destruction or loss of relevant evidence that will hinder the other side from making its own examination and investigation of all potentially relevant evidence. McLain v. Taco Bell Corp., 137 N.C. App. 179, 527 S.E.2d 712, disc. review denied, 352 N.C. 357, 544 S.E.2d 563 (2000). Spoliation of evidence is not a new concept and a party’s duty to protect material evidence has been considered valid for 100 years in North Carolina jurisprudence. See, Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). Spoliation of evidence is where a party is on notice of a claim or potential claim, destroys or negligently loses the evidence that is relevant to the non-spoliator’s allegations. McLain, 137 N.C. App at 186-187, 527 S.E.2d at 717-718. “Where a party fails to introduce in evidence documents that are relevant to the matter in question and within his control . . . there is a presumption, or at least an inference that the evidence withheld, if forthcoming, would injure his case.” Jones v. GMRI, Inc., 144 N.C. App. 558, 565 (2001) (cert. granted 354 N.C. 218, 554 S.E.2d 339 (2001); cert. improvidently allowed 355 N.C. 275, 559 S.E.2d 787 (2002)), citing Yarborough v. Hughes, 139 N.C. 199, 209, 51 S.E. 904, 907-08 (1905). A jury instruction on spoliation of evidence is required and failure to so instruct is reversible error when a party demonstrates that: (1) the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed; and (2) the missing evidence was relevant to the non-spoliator’s allegations. McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. The law requires the trial court to instruct the jury on the law arising from the evidence presented. N.C. Gen. Stat. § 1A-1, Rule 51; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715; Lusk v. Case, 94 N.C. App. 215, 216, 379 S.E.2d 651, 652 (1989). When a party requests a specific instruction, correct in itself and supported by evidence, the trial court must give that instruction. Calhoun v. Highway Comm., 208 N.C. 424, 426, 181 S.E. 271, 272; McLain, 137 N.C. App. at 182, 527 S.E.2d at 715. Thus, if there is evidence that the spoliator was on notice of the claim or potential claim at the time the evidence was lost or destroyed, and the missing evidence was relevant to the non-spoliator’s allegations, the failure to give the spoliation instruction is reversible error. See, McLain, 137 N.C. App. at 186-87, 527 S.E.2d at 717-18. In the unpublished case of Elliott v. Food Lion the North Carolina Court of Appeals held that the admission of certain depositions was relevant to the issue of spoliation where Food Lion had failed to follow their own policies and procedures to secure relevant videotape and pictures. UNPUBLISHED Elliott v. Food Lion, L.L.C., 605 S.E.2d 742 (N.C.App. Dec 21, 2004) (WESTLAW, NO. COA03-1705). Thus, a party that attempts to destroy or hide evidence in a case to protect itself merely creates a later problem. The punishment for withholding or destroying evidence is a presumption that the withheld or destroyed evidence WOULD have helped the other party.
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