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Put simply, spoliation is the destruction of evidence. Many people assume the only valid reason to destroy evidence is because it’s incriminating. But there are situations when evidence is destroyed unknowingly.
There is evidence in every personal injury case, no matter how slight. Let’s assume we are talking about an auto accident involving two cars in which an airbag failed to deploy. What remains at the scene, such as skid marks and debris, will be destroyed by nature, traffic and other natural conditions, so it is important to have investigators and reconstruction experts dispatched as quickly as possible.
But what about tangible evidence, such as a vehicle? If the car is taken to an impound lot and declared “totaled” by the insurance company, it is entirely possible that the vehicle could be destroyed or pieced apart prior to a trial in which liability or fault might be questioned. This would be devastating to a case.
What about video or audio recordings? These could easily be destroyed or erased if a party is not aware that they are important.
What if the issue of fault is questioned? An inspection of the vehicle is imperative, particularly if you are looking for a faulty item, like the airbag. This is an essential element for a products liability claim. Again, if the vehicle is destroyed, this evidence would be lost.
All parties in a lawsuit have a duty to preserve evidence, including third parties who have a special contractual or statutory relationship. But the California Civil Discovery Act does not specifically bar the intentional spoliation of evidence prior to filing a lawsuit.
In California, the duty to preserve evidence does not arise until the party is served with discovery demands. (Most of the evidence in a trial is obtained through a process called “discovery” where you are literally discovering information needed to prove or disprove elements of a case.)
You or your car accident attorney might consider sending a spoliation letter to warn the other side against destruction of evidence.
As you know, Allan Attorney and I are representing Penny Plaintiff with respect to the above-referenced incident. I am writing in response to your firm’s March 2, 2016 letter to our firm.
We wish to arrange an inspection of your clients’ vehicle. We are in receipt of photographs previously submitted along with the traffic incident report taken at the scene. This letter is also meant to advise you that you must also preserve all data of any type relating to the collision. This includes any written material such as witness statements, log books, further incident reports, inspections, service records, bills, dispatch records, maintenance records, accident reporting records, driver hiring and employment records; electronic data of any kind; any video or audio recordings, as well as any data relating to the use of any cell phones or other communication devices prior to or during the time of incident.
Please do not dispose of any of this material. We anticipate that it will be both discoverable and admissible in any litigation that may arise out of this claim. Failure to preserve this material will result in a request for a spoliation instruction at any trial in this matter.
I understand you intend to preserve the vehicle itself at least until June 2, 2016. I am attempting to arrange to have it inspected prior to that date; however, if it cannot be scheduled by then, I am asking that the vehicle be preserved until an inspection can take place.
I look forward to hearing from you.
There are many details that need to be attended in a personal injury case, which is why it makes the most sense to hire an experienced personal injury attorney. He or she will be able to think of forms of evidence that may not have occurred to you, and know what to do with the evidence in order to build a compelling case. When you have medical injuries or emotional trauma, it’s best to let a professional handle the legal proceedings. We’re here to help.
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