Collection and Preservation of Evidence for Experts and Insurers: Recognizing and avoiding spoliation of evidence

WDC Journal Edition: May 2002
By: Robert Bull, Esq.

Spoliation of evidence is not limited to actions taken only after the filing of a lawsuit. There is a large body of case law in Wisconsin and elsewhere dealing with the destruction of evidence preceding suit. Some courts have already concluded that spoliation can occur prior to the commencement of a suit -- even without showing malice -- if a party should have known of its relevance. See, e.g., Stubli v. Big D International Trucks, Inc., 810 P.2d 785 (Nev. 1991); Graves v. Daley, 526 N.E. 2d 679 (Ill. 1988); American Family Ins. Co. v. Village Pontiac GMC, Inc., 585 N.E. 2d 1115 (Ill. 1992).

Moreover, anti-spoliation rules apply to experts as well as litigants. In Nally v. Volkswagen of America, Inc., 539 N.E.2d 1017 (Mass. 1989), the plaintiff's expert was precluded from testifying with regard to: (1) his observations of a spoliated product; and (2) any opinions the expert held. The rule rests on the unfair prejudice which would result from allowing an expert, whether deliberately or negligently, to put himself or herself "in the position of being the only expert with first-hand knowledge of the physical evidence on which experts' opinions as to defects and causation may be grounded." Id.

The consequences of spoliation for a litigant are well known, but it is also worth noting that, where evidence has been destroyed, litigation against those responsible for its destruction may follow. A few jurisdictions - including California, Alaska and Florida - recognize an independent cause of action for the tort of spoliation which can be commenced and maintained by a person who has suffered damages as the result of spoliated evidence; where successful, the party harmed by the destroyed evidence is awarded money damages at the expense of the spoliator.

In most litigation involving a fire, the ability of a product manufacturer or other allegedly culpable party to inspect the fire scene before it is repaired can be critical to their defense. In most such litigation, it can at least be argued by the defendant that the examination of the fire scene itself is vital to determining the cause and origin of the fire. Inspection of the fire scene permits experts of defendants' choosing to develop theories of alternative potential causes of the fire, and to preserve evidence, if any, supporting alternative causes. In that respect, various industry standards can provide grounds for recognizing and deciding spoliation issues.

  1. Chapters 8 and 9 of NFPA 921.
    NFPA Chapters 8 and 9 deal with preserving the scene and physical evidence. NFPA 921 - Guide for Fire and Explosion Investigations emphasizes that the fire scene itself is considered to be evidence and "the examination and analysis of that fire scene is vitally important in determining the origin of the fire, the cause of the fire, and the responsibility for the fire." NFPA 921, Section 9-3.1, at p. 921-66 (1995 ed.).
  2. ASTM E860-82: Standard Practice for Examining and Testing Items That Are or May Become Involved in Products Liability Litigation.
    This standard advises against unilateral testing of evidence which may alter the nature, state or condition of the evidence.
  3. ASTM E1 188-95: Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator.
    This standard sets forth basic guidelines for evidence preservation.
  4. ASTM E1459-92: Standard Guide for Physical Evidence Labeling and Related Documentation.
    This standard sets forth basic evidence identification procedure for evidence removed from a scene.

The following factors may be persuasive to the court when assessing whether failure to preserve evidence, including a fire scene, rises to the level of spoliation such that sanctions should be imposed:

  1. Was the claim brought by an insurance carrier with sufficient size and/or experience to be deemed to recognize the importance of the fire scene?
  2. Was the insurance carrier truly compelled to repair or demolish the fire scene immediately to protect the public or its insured? (This assertion might be undermined where the insurer had full access to the fire scene to conduct any investigation it deemed necessary.)
  3. Was the insurer aware of a potential subrogation claim? If so, did the insurer invite the potentially culpable party inspect the fire scene? If not, would the plaintiff have been prejudiced in any way by additional inspections by other experts for other parties?
  4. How much time passed before the fire scene was actually repaired?
  5. Has there been prejudice to the defendant as a result of plaintiff's actions?