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Spoliation May Hurt Your Defensible Case: The Duty to Preserve Evidence

Spoliation may occur through negligence or intent and it can cause big problems in defending or pursuing a claim. Spoliation can have numerous causes, such as carelessness, lack of information, and failure to fully understand the legal process. More often than not it is unintentional and can result from the careless actions of an insured or even a third-party, including an expert.       

“Spoliation” is the failure to preserve evidence. Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549-50 (2002). The consequences for spoliation are based on the idea “that a party who has negligently or intentionally lost or destroyed evidence known to be relevant for an upcoming legal proceeding should be held accountable for any unfair prejudice that results.” Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 234 (2003). 

The test for applying the spoliation doctrine is whether “‘a reasonable person in the spoliator’s position would realize, at the time of spoliation, the possible importance of the evidence to the resolution of the potential dispute.’” Scott v. Garfield, 454 Mass. 790, 798 (2009) (quoting Kippenhan v. Chaulk Servs., Inc., 428 Mass. 124, 127 (1998)). The spoliation doctrine applies to evidence that a litigant destroys even before a case begins, if the litigant knows or reasonably should know the evidence might be relevant to a possible case. Kippenhan, 428 Mass. at 127 (1998) (citations omitted). 

To remedy spoliation, the court “has broad discretion to impose a variety of sanctions.” Keene, 429 Mass. at 235. As the SJC has noted: “[W]e have gone farther than other jurisdictions in imposing sanctions for spoliation.” Fletcher, 437 Mass. at 553 (citing Kippenhan, 428 Mass. at 128). The following factors are relevant:

“(1) whether the other party is prejudiced as a result of the alteration or destruction of the item; (2) whether the prejudice can be remedied; (3) the practical importance of the alteration or destruction of the item; (4) whether the party altered or destroyed the item in good faith; and (5) the possible abuse that can result if the evidence is not excluded.”

Johnson v. Mabe, 1996 WL 1186805 (Mass. Super. Oct. 4 1996), at *2 (citations omitted). 

The consequences of engaging in spoliation of evidence depend upon the spoliator’s degree of fault, which ranges from non-negligent to intentional. There are generally no consequences for non-negligent, unintentional spoliation. 

Just as the Courts consider many factors in determining whether to impose sanctions for spoliation, they determine the specific sanction to impose on a case by case basis. These sanctions may include the exclusion of evidence, or a jury instructions on the “spoliation inference.” Courts have used jury instructions as a remedy for spoliation by instructing the jury that they “may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the spoliator.” Kippenhan v. Chaulk Services, Inc., 428 Mass. 124, 128 (1998). The sanction for spoliation can go as far as the dismissal of a claim or defense. See Fletcher, 437 Mass. at 550-51 (citing Nally v. Volkswagen of Am., Inc., 405 Mass. 191, 195, 199 (1989)) (recognizing that sanction “may be dispositive of the ultimate merits of the case”); see also Keene, 439 Mass. at 236-37 (affirming default judgment as sanction for negligent spoliation of medical records); Innis Arden Golf Club v Pitney Bowes, Inc., 629 F. Supp. 2d 175 (D.Conn. 2009) (case dismissed where Plaintiff’s expert allegedly destroyed the environmental evidence). More typically, however, courts have held that, as an alternative to dismissal, an effective sanction for spoliation is to prohibit the spoliator from introducing evidence relating to the missing items or documents or giving an adverse inference charge to the jury.

Spoliation of evidence can have dire consequences in civil litigation. Therefore, it is important to have a quick response in place to deal with evidence if and when an accident or incident occurs. When litigation is reasonably foreseeable, preservation of the product or the scene is paramount. The ramifications for having lost or destroyed a product or evidence can have a negative impact on a case. Not only can a court impose dismissal sanctions, but it can also exclude evidence or adversely instruct the jury on presumption of lost evidence. All of these consequences can adversely impact a defensible case.

Since the law regarding spoliation varies widely from state to state, it is important to understand what obligations are imposed in a particular jurisdiction when responding to an accident or incident. However, when in doubt, and to the extent possible, do what you can to maintain the evidence.  The headaches and potential costs of spoliation, including litigating this issue, can be avoided by having well-documented procedures in place for the retention of evidence and documents, by communicating with the insureds, claims handlers, lawyers and experts, in writing of the necessity of preserving evidence and documents until instructed otherwise. This includes saving documents and products. In the case of evidence that cannot be preserved (i.e. a temporary property defect such as an icy condition or wet spot) take pictures, if possible, to document the condition. If litigation is foreseeable then a litigation hold must be initiated to preserve all relevant documents and evidence.

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