When facing legal proceedings, failing to safeguard relevant material evidence could be one of your worst mistakes. Even if your conduct is not deliberate, unpreserved evidence could lead to a negative outcome.
It all starts with you receiving a spoliation letter from the other party.
Timing Is Most Critical
You could get a spoliation or preservation letter for the evidence in your possession. In particular, if the material evidence can only exist for a short duration, the opposite party can send it immediately.
It gives you notice requesting you to do all you can to preserve relevant evidence. You must maintain documents, emails, pictures, videos, vehicles, invoices, and anything relevant.
Spoliation applies when:
The evidence is necessary to the case and relevant
There is any pending or contemplated legal issue at the time of spoliation
Hence, it is wise to start saving the evidence to strengthen your arguments when you can foresee potential litigation. It could be days, months, or even years before someone files a complaint against you or your organization, so it is always wise to keep a record of all transactions.
Who Can Get Spoliation Letters?
If you have sustained a substantial loss, you can file a spoliation letter against someone. Likewise, if you have aggrieved someone, it is in their best interest to send you a letter of spoliation to put you on notice. It is also important to remember that both parties are expected to make efforts to preserve evidence pertaining to a lawsuit, as both parties can be accused of destroying it.
Anyone can be at the receiving end, including contractors, medical professionals, trucking companies, etc.
Look at the below example:
A commercial truck collided with a car, and the truck owner received a preservation letter. Instead of leaving the truck in the same condition as it was after the accident, they got it repaired.
Consequently, the plaintiff, who wanted to inspect the truck, alleged intentional destruction of crucial evidence. The court imposed sanctions as it deemed the defendant’s acts to be deliberate.
What Is the Impact of Spoliation?
If you are guilty of destroying evidence, the judge can impose penalties like adverse inference charges. It means the jury will be asked to take it as a negative inference about the party that destroyed valuable evidence.
Besides, the judge may disregard some aspects of the argument because it is difficult to prove due to the lack of evidence. While these penalties may ultimately decide if you win or lose, in some cases, the judge can rule who wins by default.
How to Avoid Spoliation?
A spoliation letter shifts the burden of preservation of evidence to the defendant. If you don’t give this matter some thought and follow a procedure, you may end up vulnerable in the courtroom.
Here’s how to avoid sanctions and penalties:
Determine Your Risk
Organizations, businesses, contractors, and anyone that deals with clients should have a protocol. Once you know that there is a reported incident and you are the defendant, identify the evidence.
It could be potentially relevant information like:
Gather the Data
Speak to your IT manager, insurance carrier, HR personnel, risk evaluator, and other departments to collect the evidence. It could be physically available or uploaded to the cloud. Either way, grab all hard copies and electronically stored information.
Store It in a Safe Location
The purpose of evidence preservation is to prevent spoliation, which means the storage should be indestructible. Find a safe space where you know the documents and files will not be lost and ensure they stay there for as long as possible. But first, make electronic copies of all physical documents, photographs, expense reports, etc., and store everything on a drive that’s both secure and accessible at all times.
Backing up electronic information periodically will remove the scope of errors in routine maintenance operations. Even if you accidentally delete old files, empty trash, or destroy a hard drive, evidence will remain in the cloud.