NEWS & ARTICLES

FROM BARBER BRIEFS E-NEWSLETTER · SUMMER 2012


The Litigant’s Duty to Preserve Evidence
BY SCOTT STRAUSS

As a general premise, one who plans to file suit or one who may reasonably expect to be sued has an obligation to preserve any evidence, which would tend to prove or disprove any issue of liability or damages. This duty attaches at the moment of the event, which might lead to litigation and attaches even though one is not yet a party to a lawsuit. The failure to preserve evidence is known as spoliation.  Black’s Law Dictionary defines spoliation as: “The destruction of evidence.  It constitutes an obstruction of justice.”  The courts of Arkansas have recognized the doctrine of spoliation for the better part of the last century. See Gallup v. St. Louis, I.M. & S.R. Co., 215 S.W. 586, 140 Ark. 347 (1919). The court’s position was refined 15 years later in Middleton v. Middleton, 68 S.W.2d 1003, 188 Ark. 1022 (1934), in which the court stated that when part of a material instrument was destroyed, there is a legal presumption the document destroyed was against the interest of or adverse to the person or entity allowing the document to be destroyed. However, where the instrument or document was willfully destroyed, there is a conclusive presumption that the destroyed document would have proved the other party’s claim. On the other hand, there must be some proof the lost or destroyed evidence was relevant to the issue at hand. For example, in Bedell v. Williams, 2012 Ark. 1975, the Supreme Court, in what appears to be the latest spoliation decision, held that when a party proves only that documents existed at one time and were required to have been maintained in the ordinary course of the opponent’s business, and were not, a spoliation instruction is not warranted. Rather, again, there must have been some evidence to the effect the missing documents were relevant. 

Spoliation typically applies only to the parties to a lawsuit. For example, in Downen v. Redd, 367 Ark. 551, 242 S.W.3d 273 (2006) an employee was injured by a large piece of equipment owned by his employer. By virtue of the workman’s compensation exclusive remedy provision, the employer was immune from any suit by the employee. However, the employee chose to pursue a product liability claim against the manufacturer of the equipment.  In the meantime, and in the ordinary course of its business, the employer sold the equipment and it could no longer be located. The employee urged the court to create a new, independent, cause of action for spoliation as against the employer for failing to preserve the equipment for the employee’s benefit. The court ruled because the employer was not a party, it had no independent duty to preserve evidence for its employee’s benefit. Further, the employee failed to timely seek access to the equipment consistent with the other provisions of the Rules of Civil Procedure. 

The law of spoliation can be very quickly described. When in doubt, save the object, item, document or thing. Some very real examples of this might be a blown tire, payment receipts for the period in dispute, the broken window and its fragments; or, anything that might evidence, reflect, prove or disprove a claim. 

Not only should one preserve these items, in the event that fewer than all the potential parties are asked to inspect or test the preserved evidence, one should take steps to place any potential parties on notice of the inspection or testing. In the typical case, this might include retailer, wholesaler, manufacturer, designers, or even mere handlers of the product. Likewise, when placing these entities on notice, the notice should provide for a meaningful opportunity to inspect and test, consequently care must be given to setting a single time and date for all parties to participate, rather than separate times for each party. This avoids the claim that one party’s testing somehow altered or destroyed the evidence. 

In short, the very innocent act of cleaning up the scene of an accident or injury may in and of itself expose one who is otherwise innocent to liability.