The spoliation of evidence presents special problems in litigation that are often inadequately addressed by judges. Unless the judiciary becomes more willing to use default judgment as a sanction for spoliation, there will continue to be many cases where it is impossible to simultaneously punish the spoliator, deter future spoliation, and do justice to the party harmed. But until there is a clear test for when default judgment is appropriate in spoliation claims, it is unlikely district courts will be more inclined to use it. In Spotted Horse v. BNSF R.R. Co., the Montana Supreme Court missed an opportunity to explain when and how default judgment is appropriately to be employed as both an effective deterrent and means of doing justice to the party harmed. Without that clear direction, district courts will likely continue to fashion spoliation sanctions that lack a sufficient remedial value and do little to deter spoliators.
Jason M. Collins, Case Note, Spoliation Remedies in Spotted Horse: Dealing Effectively with the Last Refuge of a Scoundrel, 76 Mont. L. Rev. Online 133, https://scholarship.law.umt.edu/mlr_online/vol76/iss1/16.