This is the second post about making sure you have all the evidence you need for your case. In the first post, we talked about the proactive steps you can take to preserve evidence that the business you are suing may have. If you did not get a chance to read it, you can do so by clicking here. In this post, we talk about different ways the business or other parties can destroy evidence and how it can affect your case.
Once a spoliation or preservation of evidence letter is sent, the party who receives it has a legal obligation to preserve any information you request in the letter. The letter serves to put that party on notice that litigation against them is forthcoming. While sometimes the opposing party takes steps to make sure that none of the evidence you need is destroyed, other times evidence is destroyed either intentionally or unintentionally despite the notice to preserve it.
There are several ways in which businesses and other parties can destroy evidence. First, evidence can literally be destroyed: e-mails can be deleted off of servers, papers can be shredded, or a car or product with a defect causing your injury can be repaired. Second, evidence can be deleted unintentionally through an automated system. For example, a business may have a policy or computer program that automatically deletes emails after a certain number of days unless they take proactive steps to save them. This type of destruction occurs frequently. Third, evidence can be considered “destroyed” where it simply is not produced by the other party. Here, the evidence would essentially be non-existent in the lawsuit.
Each type of destruction of evidence carries its own consequences. Just recently, a sheriff and county attorney in Savannah were investigated by the Georgia Bureau of Investigation for destroying county documents. If the evidence destroyed is immaterial to the case, the court may not impose any consequences or so-called sanctions. On the other hand, Georgia courts have created a four-part test to determine when a severe sanction, such as dismissal of a case, should be imposed.
The first factor courts look at to determine whether a significant sanction is warranted is whether the party requesting evidence was prejudiced as a result of its destruction. This factor essentially looks to see whether the evidence you are requesting would, in fact, help your case if you had it. Following from that, the court determines whether your case is substantially hurt by not having the evidence. Second, a judge will determine whether the prejudice towards you could be cured. For example, if you are requesting to preserve another party’s tires that contributed to your injury in a car wreck, pictures of the tires that show they were damaged could still be used by you to prove your claim.
Third, the judge will look at the practical importance of the evidence. This is much like the first factor, however, includes within it whether your claim will be strong without the evidence that was destroyed. If you have an overwhelming amount of evidence showing that the business you are suing is at fault, the evidence you requested may not change the outcome of your case. Lastly, a judge will look at whether the party who possessed the evidence that is now destroyed acted in good or bad faith. If the judge determines a business purposefully deleted emails they had an obligation to preserve, the sanctions will be much harsher than a good faith failure to preserve them.
When these factors are met, the court will decide between a wide array of consequences. These consequences can range from a monetary fee to the party who destroyed the evidence losing the case entirely. Lately, a judge in Washington instructed a jury that whatever information was alleged to be in deleted emails should be treated as if they were harmful to the case of the party who deleted them—this is called an inference.
It is important to draft a preservation of evidence letter that puts the other party on notice of what evidence you need for your case. If the other party fails to preserve all of the evidence they are legally required to, they may face sanctions that can help you recover. Mike Rafi knows what evidence you need for your case and how to determine whether a business has destroyed that evidence. He can make sure that businesses who destroy evidence essential to your case are held responsible for doing so.