A potential pitfall in navigating a litigated, or potentially litigated claim, is not properly preserving evidence. Attorneys and parties must preserve potentially relevant evidence when they know or should know, that a claim will be or is litigated.
In Iowa, spoliation of evidence refers to the intentional destruction of potentially relevant evidence.
Especially for tort actions (slips/trips/falls, motor vehicle accidents, product liability, fire damage, etc.), it is generally the defendant who is danger of spoliating evidence. This is because they are usually the ones in control of the location or the instrumentality of the damage.
If evidence is intentionally destroyed, there can be severe consequences. Iowa courts have allowed a few different remedies for spoliation:
- Discovery sanctions on the spoliating party
- Bar duplicate evidence where fraud or intentional destruction is indicated
- Allow an inference via jury instruction that the evidence would have been unfavorable to the spoliating party, in cases of egregious conduct
Reduce Your Risk
There are simple things that can be done to reduce your risk of evidence spoliation. Consider having a protocol in place that is triggered once an incident has been reported to you as a potential defendant. Think about implementing the following “ICP” protocol.
Identify - First, identify the potentially relevant evidence. This could come in the form of documents, surveillance videos, photographs, emails, phone records, text messages, voicemails, word processing documents, database information, calendars, online access data, black box data, cars, buildings, etc. Your insurance carrier or attorney are good sources to consult in determining what information is potentially relevant.
Collect - Second, collect the potentially relevant evidence. Most of the evidence will be easily accessible. However, for less easily accessible information, especially electronically stored information, you may need to work with your risk manager, HR manager, IT professional, phone carrier, etc. to make sure you are collecting all of the potentially relevant information.
Preserve - Third, preserve the potentially relevant evidence in a way that will prevent future loss or destruction.
Consider keeping paper records together in a safe location and create an electronic copy as well.
Consider preserving electronically stored information in a way that will prevent loss or destruction due to routine maintenance operations (i.e. deleting old files or versions of documents, emptying your “trash,” clearing history/cookies, automatic deletion of emails by age, etc.). You may want to save the electronic information on your computer as well as on a removable hard drive. It is possible that your employees or others may seek to destroy, alter, or accidentally delete potentially relevant evidence, so you should discuss the ICP protocol with employees or others with potentially relevant evidence.
Attorneys frequently send out “litigation hold” letters to their clients to make sure they have and continue to implement this protocol. If you receive one of these letters, you should act immediately to identify, collect, and preserve potentially relevant information. Although in Iowa the destruction of evidence must be intentional to establish spoliation, you do not want to be in a position where there is the appearance of intentional destruction due to negligent destruction.
Repairing or Destroying Evidence
Sometimes a potentially relevant piece of evidence needs to be repaired or destroyed after being involved in an incident. For example, a car that was involved in an accident needs to be repaired so the party can use the car again. As another example, a factory that sustained fire damage needs to be repaired so regular business activities can resume.
Likely you will need to send written correspondence to all potential parties about your desire to repair or destroy the relevant piece of evidence. Make sure your notice is prompt, notifies all potential parties, and gives a reasonable amount of time for those potential parties to inspect, perform tests, etc. before the evidence is repaired/destroyed. By allowing all potential parties an opportunity to inspect the evidence, your risk of a spoliation allegation is reduced.
Litigation is intimidating and the many risks involved may be difficult to navigate. One risk that can be mitigated is a claim of spoliation of evidence. By bringing in your insurance carrier and attorney early, and implementing an ICP protocol, you can reduce the risk of a spoliation claim by keeping your eye on the potentially relevant evidence.
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