You’ve probably seen a courtroom drama or two on TV.
Maybe the movie or episode you watched involved a sinister DA or an unethical police chief secretly destroying evidence in a dark back room. In reality, this doesn’t happen too often. Usually, if there’s an issue with preserving evidence, it’s in the hands of the opposing party — not the police or prosecutors.
Besides, most TV dramas involve criminal trials, not civil lawsuits. For TV or movie purposes, though, it’s much more dramatic when it happens in a police station or government building.
So, let’s talk about what could really happen to important evidence for your civil personal injury lawsuit, and what you and your lawyer can do to protect it.
What is a spoliation letter?
A letter of spoliation is a notice sent to an opposing party that requests that all relevant evidence is preserved. It can either be general (“all relevant evidence”) or specific (“a voicemail left by Mr. Smith on June 8th”).
Discovery is a pre-trial process that enables parties to exchange information. It compels parties to turn over certain pieces of evidence so that all parties can fairly prepare for trial.
Most spoliation letters specifically request that the adversary avoids:
- Tampering with evidence
- Hiding evidence
- Destroying evidence
Some records could be destroyed simply because it’s part of the regular course of business.
For example, many people delete their voicemails once they’ve listened to them and returned the call or taken notes. It’s not because they’re trying to hide anything; they just like to keep inboxes clear. Same with email.
But sometimes those pieces of correspondence are important to a legal claim. A spoliation letter prevents that “normal business practice” from deleting or destroying important information.
Types of evidence protected by a spoliation letter
Some of the most common cases that involve spoliation requests are truck accidents and construction accidents. Spoliation can be requested and performed on any type of evidence. This includes:
- Paper documents, including personnel records
- Electronic records
- Hard drives, backup discs, etc.
- Phone records (call logs, voice mails, text messages, etc.)
- Medical records
- Social media posts and correspondence
- Any other material evidence
For example, if you’ve been in a truck accident, your lawyer’s spoliation to the trucking company can demand that they preserve any relevant evidence, including (but not limited to):
- Inspection records
- Maintenance reports
- Repair records
When do you need a spoliation letter?
We use truck accidents as an example of when spoliation letters are necessary because there are so many regulations for truck maintenance in order for a truck to be “cleared” for travel, in addition to regulations about the type of cargo they can carry, weight, loading, driver hours, and other things.
It can be a challenge to find the cause of a truck accident because there are so many factors that could contribute — from driver error to mechanical malfunction or cargo that was improperly loaded. In many instances, the evidence recovered at the scene isn’t enough to determine the cause of a truck accident. It might take some digging into the company’s records in order to figure out where a mistake was made or where the company might have been negligent in a way that caused an accident.
Spoliation can either be intentional or negligent.
Why is it important to preserve each bit of information?
You never know if something that might seem small or insignificant could end up being the crucial piece of evidence in a trial. There might be a surveillance video that captured you slipping and falling in a store, or there could be a voicemail from a truck driver to his supervisor admitting that he caused an accident or that he drove the truck when he’d driven too many hours for it to be legal to be on the road.
Even if it’s not that obvious, you want to be able to obtain any records related to an accident that left you with an injury.
There’s a duty to preserve evidence that can arise in 3 ways:
- It can be because of a law that requires evidence to be preserved. For example, federal regulations require that truck driver logs and related documents must be retained for 6 months [49 CFR §395.8(k)(1)] and that inspection reports must be saved for 90 days [49 CFR §396.11(c)(2)]. Further, a commercial vehicle’s inspection, repair, and maintenance records must be kept for 1 year, and for 6 months after the motor vehicle leaves the motor carrier’s control [49 CFR §396.3(c)].
- It can be the result of a discovery request. If an accident happens and the plaintiff’s lawyer files a discovery demand, the defendant is compelled to produce the items.
- It can be pursuant to a contract. Sometimes an organization has a contractual obligation to retain a document, a set of data, or something else related to a claim.
Elements of a spoliation claim
Spoliation = destruction.
If you believe that evidence was destroyed, either negligently or intentionally, you might be able to file a legal claim for the spoliation, itself.
The basic elements of a spoliation claim are:
- There was potential for a civil lawsuit.
- The parties had a legal or contractual duty to preserve evidence.
- The evidence was destroyed.
- The destruction of evidence led to a significant impairment of the ability to prove the lawsuit’s claims.
- You can show that you couldn’t prove the lawsuit because the evidence was destroyed.
- The evidence spoliation costs you money.
What to include in a spoliation letter
The more specific your letter can be, the better.
For example, in a truck accident, you might ask for things that include:
- The driver’s entire personnel file, along with their entire medical file. This includes their entire drug and alcohol file including pre-employment and post-accident testing, random tests, reasonable suspicion, and return to duty testing results.
- All photographs, videotapes, or other audio or computer media related to the accident, the scene, or any equipment near the site of the collision.
- All data from the engine’s “black box” (electronic control monitor).
- All freight and loading information for the load being hauled at the time of the crash.
Again, these are just examples. What you or your attorney ask for depends on the nature of your claim.
You’ll want to also request any other information that might be relevant to the crash. This might seem like a “catch-all” — and it is — but it’s important because you might not know that an important piece of evidence exists and this might be the only way to find out.
If any party to the litigation destroys evidence, it doesn’t matter whether it was intentional or unintentional. Either way, there are strict sanctions that include striking of pleadings, excluding expert testimony, or even having the claim dismissed.
How can I help?
Can you find examples of spoliation letters online?
But will any of them have specific questions tailored to the facts of your case?
That’s how your lawyer can help. Lawyers use standard language in legal documents all the time, but we make sure that we’re ALSO asking the hard questions specifically related to your case. Every case is different and the evidence you need to prove your claim is specific to your accident.
Uncovering the right evidence can be the make-or-break difference in being successful or unsuccessful in a lawsuit. You have to know what you’re looking for and how to find it, and that’s what an expertly crafted spoliation letter can do.
Mike van says
I was injured on 5/12/2o. I hired an attorney on 5/15/20. They sent a letter to the store requesting they preserve the videos on 9/18/20. 4 months later.
Now I’m in court with my new attorneys and the evidence is gone. Why would an attorney wait 4 months to send that letter? This is hurting my case!
Ian Pisarcik says
I’m sorry to hear about this. Typically, attorneys send out “spoilation letters” as soon as possible. It’s impossible for me to know why your former attorney didn’t send out a letter earlier without knowing the facts of your case or talking to your former attorney. While there’s probably nothing that can be done about it now, you might consider asking your current attorneys whether they believe it’s grounds for a malpractice suit.