What Is Spoliation of Evidence? Impact on Your Injury Claim

Understanding Spoliation of Evidence

Spoliation of evidence refers to the intentional or negligent destruction, alteration, concealment, or failure to preserve evidence that is relevant to a legal proceeding. In personal injury cases, spoliation can involve the destruction of surveillance footage, the disposal of defective products, the alteration of maintenance records, the deletion of electronic data, or the failure to preserve physical evidence from an accident scene. When evidence is spoliated, it can significantly affect the outcome of your case, either by depriving you of critical proof or by creating legal presumptions in your favor.

The concept of spoliation recognizes that parties to a legal dispute have a duty to preserve evidence that they know or should know is relevant to the dispute. This duty arises when litigation is reasonably anticipated, not just when a lawsuit is actually filed. For example, when a store customer reports a slip and fall injury, the store has a duty to preserve surveillance footage of the incident even before the customer files a lawsuit.

Spoliation is a serious issue in personal injury cases because critical evidence is often in the exclusive control of the defendant. Surveillance footage, maintenance records, inspection logs, product samples, and electronic data are typically controlled by the business or individual who caused the injury. If this evidence is destroyed, the plaintiff may be unable to prove their case, which is why the law provides remedies for spoliation.

Types of Evidence Commonly Spoliated

Several types of evidence are frequently subject to spoliation in personal injury cases.

Surveillance Footage

Surveillance footage is one of the most commonly spoliated types of evidence. Businesses typically retain surveillance footage for a limited period, often 30 to 90 days, before it is automatically overwritten. If the business fails to preserve footage after being notified of an incident, the destruction may constitute spoliation. Surveillance footage can be critical evidence showing the hazardous condition, the circumstances of the accident, and the defendant's knowledge of the hazard.

Maintenance and Inspection Records

Records documenting maintenance activities, safety inspections, and repair histories can be crucial evidence in personal injury cases. If these records are altered, destroyed, or conveniently lost, it may constitute spoliation. These records can show whether the defendant properly maintained their property or equipment and whether they were aware of hazardous conditions.

Electronic Data

Electronic evidence including emails, text messages, GPS data, vehicle event data recorder information, and computer files can be critical in personal injury cases. Electronic data can be easily deleted or overwritten, making preservation particularly important.

Physical Evidence

Physical evidence such as defective products, damaged equipment, accident debris, and clothing can be spoliated through disposal, repair, or alteration. Preserving physical evidence in its post-accident condition is essential for expert analysis and trial presentation.

Medical Records

While less common, the alteration or destruction of medical records can constitute spoliation in medical malpractice cases. Healthcare providers who alter records to conceal errors face serious legal consequences.

The Duty to Preserve Evidence

The duty to preserve evidence arises when a party knows or should know that evidence is relevant to pending or reasonably anticipated litigation.

When the Duty Arises

The duty to preserve evidence typically arises when a party receives notice of a claim, when a party is served with a lawsuit, when a party receives a preservation letter from an attorney, when an incident occurs that a reasonable person would recognize could lead to litigation, or when a party becomes aware of facts that suggest potential legal liability.

Scope of the Duty

The duty to preserve extends to all evidence that is relevant to the anticipated litigation, including documents, electronic data, physical objects, and any other materials that could be relevant to the claims or defenses in the case. The party must take affirmative steps to preserve this evidence, including suspending routine destruction policies, issuing litigation hold notices to employees, and securing physical evidence.

Who Has the Duty

Both plaintiffs and defendants have a duty to preserve relevant evidence. However, in personal injury cases, the duty is most significant for defendants because they typically control the evidence that is most critical to the plaintiff's case.

Legal Consequences of Spoliation

Courts take spoliation seriously and have several remedies available to address it.

Adverse Inference Instruction

The most common remedy for spoliation is an adverse inference instruction, where the court instructs the jury that it may presume the destroyed evidence was unfavorable to the party that destroyed it. This instruction can be powerful because it allows the jury to assume the worst about the missing evidence.

Exclusion of Evidence

Courts may exclude evidence offered by the spoliating party that relates to the destroyed evidence. For example, if a defendant destroyed surveillance footage but wants to offer testimony about what the footage showed, the court may exclude that testimony.

Monetary Sanctions

Courts can impose monetary sanctions on parties who spoliate evidence, including requiring them to pay the opposing party's attorney fees and costs incurred as a result of the spoliation.

Default Judgment or Dismissal

In extreme cases of intentional spoliation, courts may enter a default judgment against the spoliating defendant or dismiss the spoliating plaintiff's case. These severe sanctions are reserved for the most egregious cases of deliberate evidence destruction.

Independent Tort Claims

Some states recognize spoliation of evidence as an independent tort, allowing the injured party to bring a separate lawsuit for damages caused by the destruction of evidence. This remedy is available in addition to sanctions in the underlying case.

How Spoliation Affects Your Settlement

Spoliation can significantly affect the value and outcome of your personal injury claim.

Strengthening Your Case

If the defendant spoliated evidence, the adverse inference instruction and other sanctions can actually strengthen your case. The jury's ability to presume that the destroyed evidence was unfavorable to the defendant can be more powerful than the evidence itself might have been.

Increasing Settlement Pressure

The threat of spoliation sanctions increases pressure on the defendant to settle. Defendants facing adverse inference instructions know that the jury will be told they destroyed evidence, which creates a negative impression that is difficult to overcome.

Compensating for Lost Evidence

Spoliation remedies are designed to compensate for the loss of evidence and to restore the balance between the parties. While the destroyed evidence cannot be recovered, the legal consequences of spoliation help ensure that the spoliating party does not benefit from their destruction of evidence.

Punitive Damages

In cases involving intentional spoliation, the destruction of evidence may support a claim for punitive damages. The deliberate destruction of evidence demonstrates a consciousness of guilt and a disregard for the legal process that can justify punitive damages.

Protecting Evidence in Your Case

Taking proactive steps to preserve evidence is essential for protecting your claim.

Send a Preservation Letter

Your attorney should send a preservation letter to the defendant as soon as possible after the accident. This letter puts the defendant on formal notice of their duty to preserve all evidence related to the incident, including surveillance footage, maintenance records, electronic data, and physical evidence. The letter should be specific about the types of evidence that must be preserved.

Document Everything Yourself

Do not rely solely on the defendant to preserve evidence. Take your own photographs and videos of the accident scene, the hazardous condition, your injuries, and any other relevant evidence. Collect witness contact information and write down your detailed account of the incident.

Preserve Your Own Evidence

You also have a duty to preserve evidence relevant to your claim. Keep all medical records, bills, correspondence, photographs, and other documents related to your case. Do not delete text messages, emails, or social media posts that may be relevant.

Act Quickly

Time is critical when it comes to evidence preservation. Surveillance footage may be overwritten within days, accident scenes change quickly, and witnesses' memories fade. The sooner you take action to preserve evidence, the stronger your case will be.

Hire an Attorney Promptly

An experienced personal injury attorney knows what evidence is important, how to preserve it, and how to respond if evidence is destroyed. Hiring an attorney promptly after your accident ensures that preservation efforts begin as soon as possible.

Spoliation in Specific Types of Cases

Spoliation issues arise in various types of personal injury cases.

Premises Liability Cases

In slip and fall and other premises liability cases, surveillance footage and maintenance records are the most commonly spoliated evidence. Businesses that routinely overwrite surveillance footage and do not maintain adequate records may face spoliation claims.

Product Liability Cases

In product liability cases, the defective product itself is critical evidence. If the product is repaired, modified, or discarded before it can be examined by experts, spoliation may have occurred.

Motor Vehicle Accidents

In car accident cases, vehicle event data recorder data, dashcam footage, and cell phone records can be spoliated if vehicles are repaired or scrapped and electronic data is not preserved.

Medical Malpractice Cases

In medical malpractice cases, the alteration or destruction of medical records is a particularly serious form of spoliation that can result in severe sanctions.

Workplace Injury Cases

In workplace injury cases, safety records, inspection reports, training records, and equipment maintenance logs can be spoliated if the employer fails to preserve them.

Proving Spoliation

To obtain spoliation sanctions, you must typically prove several elements.

Existence of the Evidence

You must show that the evidence existed at some point. This can be established through testimony, references in other documents, or circumstantial evidence.

Duty to Preserve

You must show that the spoliating party had a duty to preserve the evidence, which typically requires showing that litigation was pending or reasonably anticipated.

Destruction or Loss

You must show that the evidence was destroyed, lost, or altered. This can be established through the party's admission, testimony from witnesses, or the absence of evidence that should exist.

Relevance

You must show that the destroyed evidence was relevant to your case. Some courts also require a showing of prejudice, meaning that the destruction of the evidence harmed your ability to prove your case.

Intent or Negligence

The level of intent required varies by jurisdiction. Some courts require a showing of intentional destruction, while others impose sanctions for negligent destruction as well.

Conclusion

Spoliation of evidence is a serious issue that can significantly affect the outcome of your personal injury case. Understanding the duty to preserve evidence, the consequences of spoliation, and the steps you can take to protect critical evidence is essential for pursuing fair compensation. If you suspect that evidence in your case has been destroyed, an experienced attorney can help you seek appropriate sanctions and remedies.

Use our free settlement calculator to get an estimate of what your injury claim may be worth. Our tool considers your injury type, medical expenses, and other factors to provide a personalized estimate that can help you understand the potential value of your case.

The Growing Importance of Electronic Evidence Preservation

As more evidence becomes digital, the risk of electronic spoliation has increased significantly.

Social Media Evidence

Social media posts, messages, and photographs can be relevant evidence in personal injury cases. Both plaintiffs and defendants have a duty to preserve social media content that may be relevant to the litigation. Deleting social media posts after an accident can constitute spoliation.

Vehicle Data

Modern vehicles contain electronic data recorders that capture information about speed, braking, and other parameters before a crash. This data can be overwritten or lost if the vehicle is repaired or scrapped. Preserving vehicle data is essential in car accident cases.

Cell Phone Data

Cell phone records, text messages, and app data can provide evidence of distracted driving, location, and other relevant information. Preserving cell phone data requires prompt action because phones may be reset, replaced, or damaged.