Evidence destroyed? Do I still have a case?
What happens when evidence is destroyed in a case?
Spoliation of Evidence: what is it and what can you do about it?
Mark Perenich is a personal injury lawyer in Clearwater he has more than 30 years experience with various cases from Car accidents to Medical malpractice.
What is ‘spoliation’ of evidence?
Spoliation is the alteration, destruction or loss of evidence which is involved in litigation.
What example can be given of spoliation of evidence?
A creditor who is suing for the payment of a sum of money on a contract has in his safekeeping the only copy of the contract which was signed by the debtor. If during discovery or litigation the debtor’s lawyer borrows the only signed copy of the contract and loses it when his briefcase is taken by a mugger, there is spoliation of evidence. If the office of the debtor’s lawyer burned down to the ground, the contract is destroyed by fire; there is also spoliation of evidence. If the contract which was in the office safe was not destroyed in the fire but the ink was smudged due to water damage so that the contract’s contents are illegible, then there is also spoliation of evidence as it was altered.
What is the effect of spoliation of evidence?
When an object which is supposed to be presented as evidence is spoliated it is not only destroyed, altered or lost, it becomes unavailable for a party to use to prove his claims. Depending upon the importance of the evidence to the litigation and depending upon the good or bad faith of the party who lost it, the party who was disadvantaged by the loss, alteration or destruction of the evidence is given the recourse of suing the spoliator – he may also be sanctioned by the court.
Is the loss, alteration or destruction of all kinds of evidence sanctioned?
No, the evidence must be key evidence and it must be essential to the subject of the litigation. In the example above, the contract is a key piece of evidence and essential to prove the creditor’s claims. The creditor is disadvantaged because the contract which was reduced to writing is the best evidence of the particulars of the agreement between him and the debtor. The signature of the debtor is the best evidence that he has agreed to be bound by the agreement. Unless the creditor can prove the contents of the agreement through a photocopy or by an exchange of letters or emails between the creditor and the debtor, he will not be able to prove his claims.
What kinds of sanctions can be imposed on the spoliator?
In the example above, the debtor may claim that sum of money the creditor was suing for should not be paid as he had not delivered the goods in exchange for the sum of money. The pleadings or documents filed in court by the debtor to prove his alternative defense of non-delivery of goods may be stricken from the record.
If the debtor filed a counterclaim in damages against the creditor, his counter claim may be dismissed. If the debtor assailed the genuineness of his signature on the document and presented the testimony of a handwriting expert, the expert testimony based upon the missing or destroyed evidence may be stricken from the records. The debtor may be declared to be in default and will therefore lose his right to present his own evidence. Or, an evidentiary presumption may rise against him.
What happens if the spoliation is inadvertent or accidental?
In determining the sanction to be imposed, the court takes into consideration not only the importance of the evidence to the subject of the litigation but also the motives of the spoliator. Bad faith is when the party deliberately destroyed or altered the evidence to deprive the opposing party of his right to prove his claim.
In the example above, the debtor’s lawyer lost the document because he was mugged and the contents of his entire briefcase was taken by the mugger. Unless the story of the mugger was fabricated, it cannot be said that the loss of the copy of the contract was intentional, deliberate or calculated to deprive the creditor of his just claims. There can be no bad faith attributable to the debtor’s lawyer.
What are evidentiary presumptions and how do they work as sanctions?
There is a saying that evidence withheld is presumed to be unfavorable if produced. That is to say when bad faith attended the loss, destruction or alteration of an essential piece of evidence, the court will deem the loss, destruction or alteration of the evidence to have been accomplished because it was unfavorable to the spoliator.
In the example above, if bad faith on the part of the debtor or the lawyer is shown, the court will deem that the debtor or lawyer destroyed, lost or altered the contract because if it had been produced in court, it will be adverse evidence against the debtor.
Why is spoliation sanctioned?
Imposing sanctions on the spoliation of evidence in bad faith maintains the integrity of the court system. If such acts were not sanctioned, any person can defeat claims against him by simply destroying evidence. Also, the court has an interest in seeing that evidence is preserved because courts cannot decide cases if evidence goes missing or is destroyed. Missing evidence delays the disposition of cases by the court.
In the example above, lawyers are officers of the court and they have a duty and accountability before the court to maintain the integrity of the legal processes. They are supposed to maintain fair play in their dealings especially in keeping documentary evidence safe.