Spoliation: How Failing To Preserve Evidence Can Spell Disaster For Your Case

Whether it is a defective product, an unmaintained piece of equipment, or even a security tape, failing to preserve evidence relevant to the claimant's injury may be devastating to your case. When a party destroys or fails to preserve material evidence, even if the conduct is not intentional, a court is authorized to impose a wide range of sanctions against the offending party.

While sanctions for spoliating evidence were initially a shield to be used by parties prejudiced by the destruction of evidence, recently plaintiff's attorneys are using such spoliation sanctions more as a sword to maintain or even revive an otherwise a weak case. It is a common practice now for attorneys to send businesses "preservation letters" before defense counsel gets involved and then later using the failure to preserve evidence as a basis to maintain a potentially frivolous claim by arguing that defendant's failure to preserve some piece of evidence has prevented the plaintiff from proving their case. The duty to preserve begins when litigation is reasonably foreseeable. As soon as a potential claim is identified, a litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action. Because a potential claim may be identified in prelitigation correspondence, the duty to preserve may start months or even years before a complaint is filed.

In order for the Court to find spoliation, it must apply a two-part test: first, whether the evidence at issue is "relevant and necessary" to the litigation; and second, whether there was "contemplated or pending litigation" at the time of the alleged spoliation. When determining whether to impose sanctions for spoliation, the courts look at various factors. The trial court looks a: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Because such an analysis by the court is completely within its discretion, it is even more important that any evidence that may be relevant to the plaintiff's claim be preserved as best as possible.

There are many examples of business being sanction for not preserving even the minutest evidence. In the case of Kroger Co. v. Walters, the court...