Concept of a case investigation - male lawyer holding a magnifying glass over icons showing case evidence and prevention of spoliation.

Spoliation of Evidence: Definition, Threats, and How to Avoid It

Michael D’Angelo, Senior Forensics Consultant, Innovative Driven

When a lawsuit is filed, the attorney should prove that the at-fault party acted negligently. The proof depends on many pieces of evidence to craft any compelling case. But what do you think may happen if the key piece of evidence that could break or make your case is lost? How can you or your attorney avoid the spoliation of this evidence?

What is Spoliation of Evidence?

Spoliation of evidence is the intentional or negligent alteration, hiding, withholding, or destruction of the pieces of evidence relevant to the trial by a party connected to the case. The destruction can happen before or after the case has been filed. Anyone connected to the case can commit spoliation. This can include the attorneys and the investigators.

Knowing What to Do When Crucial Evidence is Destroyed

The federal government made it a crime to alter or destroy evidence for the sake of influencing a trial. When a lawsuit is filed, your attorney will be given a short period to send an official letter to the at-fault party requesting relevant evidence in the case. When the party fails to preserve or present a relevant audience within the stipulated time, the court imposes punitive action on the party. The action takes various forms, such as imprisonment or payment of legal fees to the injured party.

Fixing the Problem

When the court realizes that crucial evidence has been lost, altered, or destroyed, it employs a wide variety of remedies to fix the spoliation. Although it will be difficult to fix the problem entirely, the court determines the best response. It looks at:

•    The damage the spoliation causes to the case

•    Degree of bad faith (level of negligence or intentional spoilage)

•    The extent of loss the damage may cause

•    Time of spoliation (before or after the filing of the lawsuit)

•    Relevance of the evidence in the case or defense

Threats and Concerns Associated With Spoliation

Depending on the federal and state law, you or your attorney can request various sanctions for the loss or damage of evidence. For example, in the state of Oregon under Rule of Civil Procedure 46 and Revised statute 40.135, your attorney can claim the following remedies for the loss of evidence:

  • Holding the at-fault person or party in contempt of legal order.
  • Blocking the involved party from engaging or raising any argument in the case.
  • The presumption that the destroyed pieces of evidence had adverse information to the involved party.

Steps to Avoid Possible Spoliation

State and federal rules require each party or potential litigant to preserve and present essential evidence upon request by the court. The judges have legal rights to implement sanctions in case of spoliation. Here are some tips to avoid spoliation claims:

1.    Preserve All Crucial Pieces of Evidence

After an incident and investigations, be sure to keep all key pieces of evidence safe. The pieces can be physical, such as computers, cell phones, contract terms, or other crucial records. Forensic Images are crucial to maintaining the ability to authenticate and verify data is a true representation of the original.

2.    Deduce Evidence Handling Protocol

For all physical evidence preserved, create clear handling protocols such as collection logs and chain of custody documentation. The handling protocols should ensure no alteration can be made to the pieces of evidence without prior notice to the involved parties or potential litigants. Safe and secure evidence handling and storage practices are crucial to proper evidence tracking and experts ability to authenticate evidence.

3.    Save and Secure Any Electronic Pieces of Evidence

You should save all videos or photographs captured during investigations. Also, be sure to save all communications during the investigations, regardless of how non-substantive you feel the information might be; notes will be very helpful in the future. Information should be shared with the case team so context is added to all evidence and data.

4.    Provide Prior Notice to the Opposing Parties

You may need to move some physical evidence from the crime scene to a safer place. Make sure you notify the opposing party before making a move or conduct joint inspection or movements if possible. It would be prudent to send a certified letter to avoid the litigants’ claims that the evidence was altered.

Are you in doubt or bothered by the spoliation? Contact our experts at Innovative Driven for more legal information.

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