Document Type

Article

Publication Date

1-1997

Abstract

Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency. Ariel Porat and Alex Stein focus on this problem of "evidential damage" in a fascinating and wide-ranging article.' I believe they have made a substantial contribution by creating that focus and by thinking comprehensively about the problem; they have persuaded me that this is a pervasive problem and that we should recognize the common elements among its various manifestations. Perhaps it also follows that we should have an overall strategy for dealing with evidential damage. I do not, however, agree with Porat and Stein that it is therefore unsatisfactory to address this problem with different doctrinal tools in different situations.2 Rather, I think it is probably best to use a variety of doctrinal tools to address the problem; the choice of which tool or combination of tools will depend on the facts of the given situation. In particular, though I believe that the specific "magic bullet" proposed by Porat and Stein-treating the negligent infliction of evidential damage as actionable in tort-has an appropriate role, I do not believe that it is generally optimal. That solution is unnecessarily formal and would tend to multiply litigation. It fails to reflect, and would tend to retard, the usual ability of the litigation system to respond by more limited means to the problem of evidential damage and the more general problem of uncertainty. In some circumstances, it would distract focus from the primary wrong committed, making liability turn instead on secondary factors. Finally, because it must be kept in bounds by a requirement of scienter, it would not even address the most common types of remediable evidentiary deficiencies, or would do so only clumsily. Indeed, while Porat and Stein contend that the "comprehensive evidential damage doctrine"'3 they propose should "replace all other legal doctrines that handle the problem of evidential damage both indirectly and incompletely, '4 they hedge their bets considerably: their essential claim is that "evidential damage should be actionable,"'5 but they hasten to declare that the term "actionable," as they use it, "refers to any legal redress, including shifting the burden of proof."'6 In this essay, I will use the term "evidentiary deficiency" to refer to a deficiency of the evidence-that is, a situation in which, for whatever reason, the evidence is of less than optimal quality, and so contributes to uncertainty.7 And I will use the term "evidential damage" in the sense that I believe Porat and Stein do, to refer to wrongful conduct by a person that contributes to an evidentiary deficiency.8 I will not attempt here to offer a comprehensive theory of how the legal system ought to respond to the problem of evidentiary deficiency, or to the narrower problem of evidential damage. I will, however, discuss some of the remedies that are available to the legal system. In doing so I hope to show that only a rather limited role is appropriate for a specially constructed tort remedy. Like Porat and Stein, I will focus on the situation in which the underlying litigation affected by the evidentiary deficiency is a civil tort action. Part I considers what I will call "intrinsic remedies"-those that are available, and often applied, in the underlying litigation, without the need for joinder of an additional party or an additional claim. Part II then discusses extrinsic remedies, including, but not limited to, a tort action for evidential damage.

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