Failing to Preserve Critical Evidence

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1 Failing to Preserve Critical Evidence Spoliation sanctions and how they can impact your case At some point, most litigation attorneys will be confronted with the problem of their client or the opposing party having destroyed or failed to preserve important evidence. This may be apparent at the outset of counsel s involvement in the case. Or, the destruction of critical evidence may not come to light until after trial has started. Regardless of when the loss of evidence occurs, the likelihood of potential sanctions and the effect on your case in the event of the destruction of evidence, reinforces how important it is to recognize when evidence must be preserved and know how to take a proactive role in avoiding spoliation. What is spoliation? Black s Law Dictionary defines spoliation as The intentional destruction, mutilation, alteration, or concealment of evidence. A variety of cases have at their core a dispute regarding the condition of evidence at the time of an incident causing injury. Examples of common types of such evidence include: 1. EDR or "black box" data from a motor vehicle involved in an accident; 2. The condition of premises (stairs, flooring material, lighting, handrails, etc.) where someone slipped/tripped and fell; 3. Electronically stored data or information on a computer hard drive or a social media site; 4. The condition of a product immediately following any event causing injury or damage (fire, explosion, etc.); 5. An item that potentially contributed to an accident, occurrence, or injury (shoes of Plaintiff in slip & fall; etc.) 1

2 Regardless of the nature of an event causing injury or damage, if a party has custody of evidence, the party may have a legal duty to preserve the evidence. This duty to preserve evidence exists not only after the formal commencement of litigation, but whenever a party knows or should know that litigation is reasonably foreseeable. See Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011); Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995). Once a duty to preserve evidence has arisen, the breach of that duty may subject a party to sanctions under a court's inherent authority as spoliation. "Courts have long afforded redress for the destruction of evidence * * *." Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn.1990). Determining the appropriate type and severity of sanction for the spoliation of evidence is determined by the prejudice resulting to the opposing party. Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn. 1995). In Patton, the Minnesota Supreme Court set forth the standard for reviewing spoliation sanctions: One challenging the trial court's choice of a sanction has the difficult burden of convincing an appellate court that the trial court abused its discretion--"a burden which is met only when it is clear that no reasonable person would agree [with] the trial court's assessment of what sanctions are appropriate." In Patton, the Court was faced with the question of whether spoliation sanctions were appropriate when evidence which was critical to a party's claim had been destroyed through inadvertence or negligence. The Court adopted what it described as a "reasonable and workable standard" regarding the imposition of sanction - the prejudice to the opposing party: Implicit in that standard is the need to examine the nature of the item lost in the context of the claims asserted and the potential for remediation of the prejudice. 538 N.W.2d 119. In Patton, plaintiffs purchased a motorhome in 1985 which had been manufactured by defendant, Newmar Corporation. The motorhome underwent major repairs in 1986 and In March 2

3 of 1988, plaintiffs were traveling across California in the motorhome when a fire broke out in the engine compartment. As plaintiffs were attempting to exit the burning motorhome, one of the plaintiffs fell and sustained injuries. Plaintiffs subsequently retained counsel. Approximately six months after the accident plaintiffs counsel retained an expert fire investigator to examine the motorhome. The expert photographed the motorhome, and removed and retained several unidentified components. Plaintiffs commenced their lawsuit in Defendant requested to inspect the motorhome, and was informed that the location of the motorhome was not known and that the unidentified components removed and retained by plaintiffs' expert had been lost. In reversing the Court of Appeals, and reinstating the trial court's grant of summary judgment in defendant's favor, the Minnesota Supreme Court noted: The plaintiffs have asserted that the vehicle was defectively designed and have admitted that the vehicle was twice subjected to major repair or modifications the extent and impact of which on their claim of defective design can never now be ascertained. The defendant has been deprived of an opportunity to examine this vehicle since it left its control and would be limited in the preparation of its defense to a reliance upon photographs, drawings and testimony of the plaintiffs' own investigative expert. Because the critical item of evidence no longer exists to speak for the plaintiffs' claims or to the defendant s defense, the trial court is not only empowered, but is obligated to determine the consequences of the evidentiary loss. 538 N.W.2d 119. The Patton Court held that the trial court s sanctions of excluding plaintiff s expert witness testimony and other evidence derived from the expert s investigation was appropriate. May spoliation sanctions be imposed when the destruction of evidence was not intentional or done in "bad faith"? The affirmative destruction of evidence has not been condoned by the courts. See Patton v. Newmar Corp., 538 N.W.2d 116 (Minn. 1995); Wajda v Kinsbury, 652 N.W.2d 856 (Minn. App. 2002). 3

4 However, spoliation of evidence does not need to be intentional to warrant sanctions. Patton; Wajda. In fact, evidence may be lost or destroyed inadvertently or by failing to take affirmative steps to preserve the evidence. For example, some EDR/ black box data from an automobile may be lost by continuing to use the automobile, or simply by turning the key in the ignition a sufficient number of times. If the owner of a vehicle involved in an accident, or the owner s insurer (whoever has custody of the vehicle) should reasonably expect litigation, a duty arguably exists to preserve the vehicle, including the EDR data. This may be done by keeping the vehicle in storage until the other party has had an opportunity to inspect the vehicle and download the EDR data. In Wajda v. Kingsbury, 652 N.W.2d 856 (Minn. 2002), a Minneapolis police officer claimed injuries from a collision between the squad car in which he was a passenger and a tow truck. An issue at trial was whether the squad car s siren had been activated. The tow truck driver and some witnesses testified that the siren was not activiated. The two police officers maintained that the siren was activated. Radio transmissions between officers in a squad car and the dispatch center were recorded by the Minneapolis Emergency Communications Center. The driver of the squad car agreed that it was "very possible" that plaintiff, who was a passenger in the car, spoke to dispatch between the time of the initial call and when the squad car reached the intersection where the accident occurred. The driver of the squad car also agreed that if plaintiff spoke with dispatch during that period of time and a tape were made of the conversation, it may have been possible to hear whether the squad car s siren had been activated. 4

5 Unfortunately, the city s policy was to reuse or tape over the police dispatch tape recording after 60 days. As such, the dispatch recording for the period of time at issue in this case was not preserved and no longer existed. At the conclusion of trial, the court gave the jury an unfavorable inference instruction which advised the jury that they were permitted to infer that the "siren evidence" was favorable to plaintiff. The jury returned a verdict finding the driver of the squad car 80% at fault. The jury specifically found that the squad car siren was not activated. On appeal, the court noted that spoliation of evidence need not be intentional to warrant sanctions. 652 N.W.2d at 862. The court noted that the city should have known that litigation was imminent because the accident involved injuries, and plaintiff had hired an attorney to pursue his personal injury claim within four days of the accident. As such, the city had a duty to take steps to preserve the tapes, which were relevant evidence. The Wajda court set forth its ruling: We hold that when evidence critical to a party s claim is under the exclusive control of an adverse party and the evidence is destroyed, whether accidentally or otherwise, the District Court has discretion to permit the jury to make an unfavorable inference from that fact. 652 N.W.2d at 864. Must evidence be stored and safeguarded indefinitely? How long must a party retain evidence, and incur the cost of doing so, even if litigation is expected? A custodial party's duty to preserve evidence is not endless. Several jurisdictions, including Minnesota, have recognized that, under limited circumstances, a party's destruction of evidence may be excused. See Miller v Lankow. The duty to preserve evidence must be tempered by allowing custodial parties to dispose of evidence when the situation reasonably requires it. See Hirsch v. Gen. Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108, 1122 (1993) 5

6 If a party has a legitimate need to destroy or dispose of evidence, it may, under certain limited circumstances, do so. To avoid potential sanctions for spoliation, the custodial party should provide a noncustodial party with sufficient notice and a full and fair opportunity to inspect the evidence. The Minnesota Supreme Court provided guidance regarding the sufficiency of notice of intended destruction of evidence in Miller v. Lankow, 801 N.W.2d 120 (Minn. 2011). In Miller, plaintiff claimed construction defects caused moisture intrusion damage to his home. Plaintiff attempted to resolve his claim informally with the contractors who performed work on the home. These attempts included a meeting between plaintiff and the contractors at the home. Plaintiff subsequently retained an attorney. The attorney advised the contractors that he was representing plaintiff with respect to potential construction defects which had resulted in water infiltration and mold. Plaintiff s attorney requested the contractors contact him if they wanted to inspect the property. Plaintiff subsequently retained a new attorney. That attorney sent letters to all of the contractors advising that plaintiff intended to begin remedial work on the home. Plaintiff s attorney indicated in the letter that if any of the contractors wanted to further inspect the home, they should contact him immediately. Plaintiff subsequently initiated repair work on the home. He subsequently commenced a lawsuit. The contractors filed motions for summary judgment premised on their argument that plaintiff's expert reports and opinions relating to moisture intrusion and the extent of mold should be excluded on the grounds of spoliation of evidence. The contractors specifically argued that plaintiff had spoliated evidence by removing stucco without giving the contractors an opportunity to independently inspect the home. The district court imposed sanctions for spoliation of evidence and granted defendant's motions for summary judgment. The trial court ruled that defendants had not been given sufficient notice that the evidence would be destroyed or that a claim was being sought against them. Because of the lack of 6

7 notice, defendants suffered "extremely significant" prejudice. As such, the court sanctioned plaintiff by excluding all of his expert reports and testimony relating to moisture intrusion and the extent of the mold. Because there was no other evidence regarding the cause or origin of the moisture intrusion and the extent of the mold, plaintiff's claims were dismissed due to a lack of evidence. The Court of Appeals affirmed the District Court's ruling. The Court of Appeals concluded that a party must provide actual notice of the nature and timing of any action that could lead to destruction of evidence and afford a reasonable amount of time from the date of the notice to inspect and preserve evidence. The Court of Appeals ruled that the trial court did not commit clear error by imposing spoliation sanctions. On appeal, the Minnesota Supreme Court addressed the issue of what a custodial party was required to do before destroying relevant evidence. The Court noted from its review of caselaw from other jurisdictions that a "loose consensus" had developed that a custodial party was permitted to destroy relevant evidence after he discharges his duty to preserve evidence by "giving the other side notice of a potential claim and a full and fair opportunity to inspect relevant evidence. The Miller Court concluded: A custodial party with a legitimate need to destroy evidence may be absolved of a failure to preserve evidence by providing sufficient notice and a full and fair opportunity to inspect the evidence to a noncustodial party. 801 N.W.2d at 129. After setting forth the above rule, the Court was careful to note two limitations on the rule. First, if a party destroys evidence in bad faith or without a legitimate need to do so, providing the noncustodial party with notice and a full and fair opportunity to inspect will not necessarily excuse the failure to preserve the evidence. In other words, a party is required to have a "legitimate need" to destroy or dispose of the evidence. 7

8 The second limitation set forth by the Miller Court was to note that its decision did not address a situation in which evidence was destroyed unintentionally, regardless of good or bad faith. Instead, the court indicated that its decision was limited to the sufficiency of notice by a custodial party of the intentional destruction of evidence when the party had a legitimate need to destroy the evidence, and the destruction was not being done in bad faith. The court next focused its attention on what constituted sufficient notice. The court noted that an important factor to consider when determining whether there was effective notice was whether the noncustodial parties had sufficient knowledge to protect themselves. The Miller court ruled that when considering whether to impose sanctions for spoliation, a trial court was required to consider the totality of the circumstances in determining whether the notice given was sufficient to satisfy a custodial party s duty to preserve evidence. The court went on to indicate that if a custodial party with a legitimate need to destroy evidence gives notice that is sufficient for the noncustodial parties to protect themselves by taking steps to inspect or preserve the evidence, and the noncustodial parties do not take any action to inspect the evidence, spoliation sanctions may not be appropriate. 801 N.W.2d 131. The Miller Court indicated that a meeting or letter indicating the time and nature of any action likely to lead to the destruction of evidence, along with a full and fair opportunity to inspect, will usually be sufficient to satisfy the notice rule. Providing such notice in written form is obviously a preferred practice. However, a custodial party is not absolutely required to give notice of destruction so long as the court is able to determine that the non-custodial party had sufficient knowledge to protect its interest, but failed to take any action such as inspecting important evidence. The Court did not explain specifically what would constitute a legitimate need to destroy evidence. However, in setting forth the "totality of the circumstances" rule regarding adequacy of notice, the Miller Court noted in footnote 5 that the nature of the evidence in a given case will have a bearing on the sufficiency of the notice. 8

9 The court explained that in product liability and automobile cases, courts may more often require affirmative advance notice of destruction. In explaining that distinction, the court pointed out that it is simply less burdensome to maintain evidence in products liability and automobile cases for a longer period of time. As such, in such cases, a custodial party is less likely to have a legitimate need to destroy such evidence. This suggests that with smaller items which are easier and potentially less expensive to store, the Court may be more skeptical of a party s claimed legitimate need to destroy evidence, or will be more likely to expect actual advance written notice and an opportunity to inspect the evidence be given to the noncustodial party. How are appropriate spoliation sanctions determined? A court should first determine whether a party was under a duty to preserve critical evidence, and nevertheless destroyed that evidence. If so, the court should then determine whether the party had a legitimate reason to destroy the evidence, and whether sufficient notice was provided to enable the noncustodial party to protect itself by inspecting the relevant evidence. In determining whether a sanction is appropriate for spoliation of evidence, the Minnesota Supreme Court in Miller cited Patton and Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994), and set forth the factors to be considered: 1. The degree of fault of the custodial party; 2. The prejudice to the noncustodial party; and 3. The district court's duty to tailor the sanction. The trial court is granted wide discretion in fashioning an appropriate spoliation sanction. The court may determine that the custodial party is barred from introducing any expert opinions, etc. based upon the evidence which was destroyed, particularly if the noncustodial party never had an opportunity 9

10 to inspect the evidence before it was destroyed. Such a ruling by the trial court can have a great impact on the case. For example, if the custodial party who failed to preserve evidence was the plaintiff, imposition of spoliation sanctions barring introduction of testimony regarding the evidence will likely have a catastrophic effect on plaintiff's ability to prove his case. Summary judgment in defendant's favor on liability would be likely. On the other hand, if the custodial party who failed to preserve evidence was the defendant, imposition of similar spoliation sanctions could result in the court ruling as a matter of law that defendant was liable for plaintiff s injuries. This could result in a case with a strong liability defense becoming a case in which defendant is only able to dispute damages. Courts must attempt to fashion the least severe sanction necessary to remedy the prejudice suffered by the noncustodial party as a result of the spoliation of evidence. A number of possible sanctions are available to the court. One sanction often used by courts is to give an unfavorable inference instruction to the jury. Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434 (Minn. 1990); CIVJIG Although this sanction may be less severe than barring a custodial party from introducing expert opinions or evidence, it can nevertheless significantly impact the verdict. When the jury that is told by the judge that one of the parties essentially didn t play fair, and encouraged by opposing counsel in closing arguments to conclude that the evidence was lost or destroyed because it was prejudicial to the other innocent party, it should not be a surprise when the jury rules against the party who destroyed evidence. An additional spoliation sanction available to the court is the exclusion of evidence or testimony by the custodial party. For example, if the court determines that the custodial party has destroyed evidence, the court may preclude the custodial party from introducing expert testimony or evidence 10

11 (photos, measurements, test results, etc.) from the expert s inspection of the evidence. Regardless of whether the custodial party was the plaintiff or defendant, the impact of such a sanction could obviously be devastating. Who has a duty to preserve evidence? The duty to preserve evidence is imposed upon a party having custody of or physical control over the evidence. Often the evidence is owned by and/or actually in the possession of one of the parties. In such cases, the owner/possessor would have the duty to preserve the evidence if litigation were pending or reasonably anticipated. However, in some cases, the evidence is not owned by either of the parties to the litigation. A case involving such a situation was Willis v. Indiana Harbor Steamship Co., 790 N.W.2d 177 (Minn. App. 2010). In Willis, Plaintiff was a crewman of a ship docked in the Duluth harbor. Plaintiff was injured when he slipped and fell on the dock. He claimed the dock was slippery due to an accumulation of water and limestone. The trial court found that the vessel personnel did not advise the dock (DM&IR) of Plaintiff s injury when it occurred. The dock was subsequently cleaned by DM&IR, and no record was made of the dock s condition at the time of Plaintiff s injury. The trial court gave the jury a negative inference instruction based upon the vessel personnel s failure to preserve evidence (the condition of the dock). The Court of Appeals reversed. It held that spoliation sanctions were not appropriate because the vessel personnel never had actual control over the dock - instead, the DM&IR was responsible for the condition of the dock. The court indicated that physical control is necessary before a spoliation sanction is authorized. 790 N.W.2d at

12 Based on Willis, a party must have physical control over evidence before a duty to preserve arises. If access to the evidence is equally available to either party, then spoliation sanctions would not be appropriate. Recommended actions to (hopefully) avoid spoliation In a perfect world, attorneys would be present or available to counsel parties in the days immediately following an incident so that critical evidence were always preserved. That is obviously usually not possible. However, there are steps attorneys can take to help their clients avoid spoliation sanctions. With respect to long-term clients with whom an attorney has an ongoing relationship, it would be prudent to educate the client regarding the duty to preserve evidence. Helping the client develop policies and procedures regarding preservation of evidence, providing training, and being available as a resource in the event of an accident or incident, are a few ways in which attorneys can help their clients ensure critical evidence is preserved and spoliation sanctions are avoided. In the case of insurance company clients, counsel can obviously take any of the above actions. Attorneys can also work with insurers in the time immediately following a significant accident to actively participate in the gathering and preservation of evidence. One important tool in preserving evidence is preparation and sending a letter or written notice requesting the preservation of evidence. To ensure that the custodial party and the party s employees properly preserve evidence in the event of an accident that will likely result in litigation, the party s attorney may draft a written communication and ensure prompt and effective notice to the custodial party s employees regarding the evidence to be preserved. If the attorney represents a noncustodial party, it is equally important to promptly notify/remind the custodial party of its duty to preserve evidence, and to identify the evidence which 12

13 should be preserved. Although the custodial party likely has a duty to preserve evidence regardless of a formal request by the noncustodial party, it is best to put the custodial party on notice of the fact a claim or litigation is likely, and to make clear that the noncustodial party demands that the evidence be preserved until it has an opportunity to inspect the evidence. CONCLUSION When involved in litigation, it is critical to ensure that evidence is preserved, at least until the opposing party (and its expert) has had a fair opportunity to inspect the evidence. Failing to do so may lead the opposing party to seek, and the court to grant, sanctions. These sanctions may range from a negative inference jury instruction to the exclusion of evidence and testimony about the evidence. To guard against the imposition of spoliation sanctions, it is prudent to utilize written notice to opposing parties demanding that they preserve evidence, or advising that you intend to dispose of evidence and giving them a chance to inspect the property. It is also critical to communicate early and often with your clients to ensure they clearly understand their duty to preserve and the ramifications of failing to do so. 13

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