What is Spoliation?

            Spoliation is the destruction of evidence, whether negligent or intentional, that should be preserved for a lawsuit. Depending on the jurisdiction, a spoliation claim may be brought as an independent cause of action or may be raised as the basis of a discovery dispute or seeking an adverse presumption against the party accused of spoiling the evidence, the spoliator. Herein, we look at the duty to preserve evidence, the claim of spoliation and what you can do to avoid it. These claims are widespread and a common tool for a Plaintiff’s lawyer to attempt to get around motions for summary judgment. Therefore, it is prudent to understand the duty to preserve and the ramifications of a breach of that duty or a spoliation claim.

            First, the duty to preserve evidence is broad and depending upon the jurisdiction is required once a party learns of a suit or a potential suit. However, the duty can be triggered by notice from plaintiff’s counsel. Plaintiff’s lawyers will often send “preservation” letters upon retention. This is a letter to the franchise, typically sent certified, which informs the franchise that the lawyer represents the client, that the client had an accident on a particular date, how it occurred (generally), and a specific request to preserve all evidence.  Some lawyers will be more particular in their request and will specifically ask that all video, and/or cleaning records from that date be preserved. This request and notice of a potential suit triggers a duty to preserve evidence on behalf the franchise. And, if the evidence is not preserved then there are repercussions depending on the jurisdiction. It is typically discovered in written discovery that the requested evidence was not maintained. For instance, if a Plaintiff’s lawyer sends a preservation letter requesting that all video of an accident and/or from the date of the accident be preserved, then it is incumbent upon the franchise to preserve this evidence or risk facing the repercussions.

Consequences of Evidence Spoliation

            The repercussions from a failure to preserve evidence depend upon the jurisdiction. Some states allow an independent cause of action for spoliation of evidence.  In these states, the proof required to maintain a successful action under negligent spoliation, includes: proof of the destruction of evidence, the existence of the duty to preserve, damages as a result of the destruction, and cause. Causation can be established by the plaintiff proving that his case was impaired as a result of the destruction and that the suit had reasonable chance of success with the evidence.

            Some states do not recognize a separate cause of action or tort based on spoliation of evidence; rather, the issue is addressed through discovery sanctions, or an adverse presumption benefitting the plaintiff. The states that penalize through discovery sanctions can sanction either the franchise, the lawyer, or both for the destruction of evidence that there was a duty to preserve.  With respects to the adverse presumption, in these jurisdictions, the court will allow the jury to receive an instruction that the defendant destroyed the evidence and that it must be presumed that the evidence would have been beneficial to the plaintiff. Usually, the jurisdictions that allow for the adverse presumption will only instruct same if the plaintiff has shown that the spoliator had the intent to spoil the evidence. This standard is above a negligence standard.

How Can Spoliation Affect Your Claims?

            It is important to be aware of your duty to preserve from the start. Although the duty to preserve can be broad, it is particularly important when you receive a preservation letter. This letter should be sent to your adjuster immediately as it is typically the first notice of a claim and because of the preservation request. Afterwards, and to the extent possible, you must preserve the evidence requested. If you do not have the particular evidence being sought then ask your lawyer to address this issue with the Plaintiff’s lawyer upfront. It is better to be aware of a spoliation claim early so that you can properly mount a defense. If you have the evidence, then send it to your adjuster, lawyer, or both.

Preservation letters typically request video footage from the time of the accident and travel path or cleaning documents. It is good practice to always save any video of an accident and, if possible, an hour of footage from before and afterwards. This should be done before a preservation letter can even be sent. For cleaning documents, it often depends on your internal policies. If you have a policy in place to preserve all travel path documents after the travel path is completed, then you must hold on to those documents. Your employee testimony on the policy for preservation of travel path documents will be crucial. You must make sure that your employees know if there is a duty to maintain the travel path and if so, that the travel path is saved. This internal policy and retention creates an independent duty to preserve which if not followed could lead to disaster. For instance, I represented a franchise that had implemented a policy to retain all travel path documents. Unfortunately, the franchise lost the travel path documents from the date of an accident. When we filed for summary judgment—arguing that the plaintiff could not prove that the franchise knew or should have known about the condition which allegedly caused a slip and fall—the Plaintiff opposed the motion with a spoliation of evidence argument. More specifically, the Plaintiff argued that we destroyed evidence by not maintaining the travel path documents which would show if the franchise had cleaned or inspected the area prior to the fall.  The trial court agreed and so did the appellate court; thus, an otherwise solid dispositive motion was derailed because of a failure to preserve a travel path document as required by an internal policy. This can be avoided. But the franchise must stay vigilant and aware of what they should retain after an accident.

What Documents Should I Retain After an Accident?

As a general rule of thumb, the following is a non-exclusive list of items that should be preserved after an accident: video of the incident and one hour before and after, all documents required by internal policies to maintain, the incident report, the item (if it alleged that the item caused damage or was located in or on the food purchased), witness statements and any documents supporting your defenses such as those which would prove the floor was clean. Spoliation of evidence can be avoided, but it takes a prudent and aware franchise to successfully avoid and defeat these claims.

Source: Norman “Skeet” Anseman, Perrier & Lacoste, LLC http://www.perrierlacoste.com/attorney/norman-e-skeet-anseman-iii