JOYCE LEE NO. 2024 CW 0882

VERSUS

ANWAR, INC., SAVE MORE MARKET, XYZ INSURANCE NOVEMBER 25, 2024 COMPANY, AND NAUTILUS INSURANCE COMPANY

In Re: Anwar, Inc. and Nautilus Insurance Company, applying for 19th Judicial District Court, Parish supervisory writs, of East Baton Rouge, No. 720165.

BEFORE: THERIOT, CHUTZ, HESTER, GREENE, AND STROMBERG, JJ.

WRIT GRANTED. The portion of the district court' s August 15, 2024 judgment granting Plaintiff' s " Motion for Spoliation of

Evidence" is reversed. The burden of proof on a motion seeking an adverse inference due to spoliation is on the moving party to demonstrate evidence was intentionally destroyed to deprive the moving party from its use and/ or to its access. See Cushenberry v. Scott, 2020- 1271 ( La. App. lst Cir. 12/ 30/ 20), 2020 WL 7828810 unpublished); see also Landis Const. Co., L. L. C. v. State, 2015- 1167 ( La. lst Cir. 2/ 29/ 16), 199 So. 3d 1, 2. Plaintiff did App. Evidence not introduce any evidence at the hearing on her motion. not and officially offered and introduced cannot be properly considered, even if it is physically placed in the record.

Moreover, as recognized in the jurisprudence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Regions Bank v. Eymard, 2021- 0926 ( La. App. lst Cir. 5/ 23/ 22), 342 So. 3d 908, 916, writ denied, 2022- 00977 La. 10/ 18/ 22), 348 So. 3d 731. Plaintiff did not carry her burden of proof and therefore the district court' s ruling granting Plaintiff' s motion was an abuse of its discretion. Accordingly, Plaintiff' s " Motion for Spoliation of Evidence" is denied.

MRT WRC HG TPS

Hester, J., dissents and would deny the writ.

COURT OF APPEAL, FIRST CIRCUIT

PUTY CLERK OF CO FOR THE COURT