Evidence Preservation and Preventing Evidentiary Spoliation

As a personal injury lawyer from a firm like the Law Offices of Ryan Quinn, PLLC can explain, in nearly any lawsuit involving a personal injury claim, it is imperative that counsel act swiftly and effectively to ensure that no potentially usable evidence is altered, modified, or destroyed prior to discovery.

Consequently, a plaintiff’s counsel often sends out spoliation letters for two reasons: (1) to enhance the chances that a defendant (or potential defendant) will preserve certain evidence that might be purged in the ordinary course of business, destroyed or lost; or-(2) to enhance the chances that a spoliation claim can be made if a defendant fails to preserve evidence that is included in a lengthy list of evidence being sought, sometimes irrespective of its actual evidentiary value.

These spoliation letters should be sent out as early as possible after counsel is retained, but must nonetheless be sufficiently detailed and specific to put the potential defendant on notice as to sorts of documents they need to preserve.  The letter should also be broad and aim to be exhaustive – it is the plaintiff’s benefit to put the defendants on the broadest defensible notice possible.  

Since Defendants obviously control their own documentation and records policies, and because – more often than not – spoliation casts a defendant in a poorer light than a plaintiff because a defendant is expected to know more than a plaintiff about the lawsuit process, spoliation is one aspect of a lawsuit that is particularly plaintiff-friendly.

A defendant’s decisions about evidence preservation need to be made soon after the accident – many times within hours. Frequently, an independent owner-operator wants access to his or her tractor from which the defense team needs to download essential technical information: A not-so-gentle reminder to the owner that his insurance coverage may be in jeopardy for failing to cooperate and that he or she will be on the hook for a spoliation claim usually does wonders.

The most critical use of spoliation letters for trial lawyers is to lay the groundwork for potential adverse inference instruction at trial pursuant to FRCP 37.

An adverse inference generally is a legal inference, adverse to the concerned party, made from a party’s silence or the absence of requested evidence. For example, as a sanction for spoliation of evidence, a court may instruct the jury that it can draw an inference that the evidence contained in the destroyed documents would have been unfavorable.

This is a powerful weapon in the plaintiff’s attorney’s arsenal, and one that he or she should not hesitate to wield to ensure that defendants comply with their legal duty to preserve evidence of potential legal relevance.