ACKSP Brief: Top 4 Ways to Avoid Spoliation

August 12, 2021

By Allison Krueger

Spoliation is the "intentional destruction, mutilation, alteration, or concealment of evidence." Black's Law Dictionary 1409 (7th ed. 1999). Every party or potential litigant to an action has a court-imposed duty to preserve evidence essential to a claim that will likely be litigated. However, not all destruction of evidence is considered spoliation. Here are the top 4 ways to avoid a spoliation claim:

1. Preserve Key Pieces of Evidence

When an incident occurs and an investigation ensues, be sure to preserve key pieces of evidence. This includes physical pieces of evidence as well as other relevant evidence. Physical evidence can include cell phones, computers, or weapons. Other relevant evidence may be contracts between involved parties, maintenance and repair records for the instrument/vehicle, or business records.

2. Establish Evidence Handling Protocol

For pieces of physical evidence that need to be preserved, establish a clear handling protocol which includes a litigation hold letter to involved employees/parties and chain of custody documentation. Have clear instructions that the evidence is not to be altered in any way without prior notice to potential litigants.

3. Don’t forget about Electronic Discovery

Photographs and videos taken during an investigation should be saved, but do not forget about the text messages and emails which include those photographs and videos. Be sure to preserve all the communication surrounding the investigation even if you think it’s silly or not substantive. In addition to saving the communications, the cell phones or cameras used to take the images and/or sent text messages should also be preserved.

4. Provide Notice to Opposing Parties

If physical evidence needs to be altered provide notice to any interested parties. Schedule a joint inspection for counsel and experts. Examples of the alteration of physical evidence would be the destruction of a vehicle or the change of an incident scene. If parties have not retained counsel yet, send any interested parties a letter stating that they have until (x) date to inspect prior to the destruction/alteration of the evidence. It may be a good idea to send this letter certified or “return receipt requested,” so litigants cannot claim they were unaware of the alteration of evidence.

When in doubt about whether or not to preserve something, always ask an attorney. Reach out to me for more information.