Spoliation: Top Five Reasons You Have To Preserve Evidence~3 min read

Spoliation is when evidence that is necessary to evaluate the merits of the case is destroyed or not maintained prior to a lawsuit. So, if you have been injured, and you are not sure what happened, you may have a duty to preserve evidence, as will the potential defendant in your case. Maybe you slipped on something in a grocery store, or maybe there was a mechanical failure in an ATV or snowmobile, and now you are in the hospital unsure of what to do. If you find yourself in this situation, here are the top five reasons to preserve evidence:

1. Because you need to know what happened! Beyond your legal case, it is important to try to preserve evidence when injured so you can find out what happened to you. Even if you are not able to bring a lawsuit for your injuries, knowing how and why you were hurt can provide peace of mind.
2. Because you have a duty to preserve it! Once you know you may be involved in a lawsuit (whether it is your fault, or whether you were the one injured), you have an affirmative duty to preserve evidence. This is because once the evidence is lost, it can be very difficult to prove what happened. Both sides want to be able to get concrete answers, and sometimes that is not possible. However, if you speak to an attorney early, you can know your rights and what to preserve.
3. Because if you don’t, you can have an adverse inference jury instruction! This is when the jury is advised that by not preserving the evidence, they are told by the judge in that instruction that whatever was in that evidence (whether it was video, etc.) would have been damaging to the other side. This can be a fatal instruction to your case if it is given against you.
4. Because your expert can be excluded! If you have an engineering expert on a case, and they inspect and do destructive testing, then the other side may seek to exclude your expert and prevent them from testifying. This is because the expert that was able to inspect the evidence has an advantage over the other side’s expert who does not. In some situations, this can be so manifestly unfair that the Judge will not allow the expert to testify.
5. Because your case can be dismissed! In one case in Michigan involving the negligent assembly of a motorcycle, the Plaintiff had the bike inspected by his expert and ultimately fixed. Unfortunately for the Plaintiff, the Defendant was not involved, and thus could not get a fair chance of finding out what happened. As a result of not giving the Defendant in that case the opportunity to inspect the motorcycle, the case was dismissed and the Plaintiff received nothing.

If you are involved in a situation where you were injured, it is best to speak to an attorney early in the process to find out how best to proceed in your case. The experienced attorneys at Parnell, Michels & McKay understand these laws, and are ready to help you do what is necessary to help win your case.