The phrase "preservation of evidence" conjures up visions of CSI law enforcement officers carefully documenting the chain of custody of a gruesome murder weapon. (Is it just me or is there some version of CSI on television every day at every hour?) Thankfully, that version of the phrase has little relevance in the everyday life of most of us. However, the real-life requirement to preserve evidence, and the consequences for not doing so appropriately, are far-reaching and may have enormously detrimental results, no matter what your station in life.

Not preserving evidence (or the improper destruction of evidence) is referred to as 'spoliation'. Spoliation is, generally speaking, the intentional, reckless or negligent destruction, loss, material alteration or obstruction of evidence that is relevant to litigation. Note that the definition of spoliation includes 'negligent destruction or loss'. If you have a duty to preserve evidence, you can be penalized for not doing so, even if your failure to do so is not intentional.

A duty to preserve evidence arises before a lawsuit is filed or a claim is made, if you know or should have known that there is a substantial chance a claim will be filed and that evidence in your possession or control will be material and relevant to the claim. The definition of evidence includes electronic evidence such as emails and text messages.

For example, if you own a grocery store and a store patron slips and falls on some foreign substance on the floor in your produce department, and notifies one of your employees of the incident, you should know that there is a substantial chance a claim will be filed. If you have video surveillance of the fall or of how the foreign substance ended up on the floor or both, you now have a duty to preserve that video.

Taking this hypothetical further, let's say that you do not preserve the video surveillance-what are the potential consequences? If a lawsuit is filed and the injured party requests the pertinent video surveillance footage that you no longer have, the presiding judge has a broad range of discretion in sanctioning you for spoliation of evidence.

The judge can exclude any evidence related to the missing evidence-meaning your employee who saw the video footage prior to its destruction and saw the injured party put the foreign substance on the floor just prior to "slipping" on it may not be allowed to testify about what he/she saw.

The judge can also render "death penalty" sanctions-meaning the judge could dismiss your case if you are the plaintiff or strike your defensive pleadings, as in the grocery store hypothetical. In essence, this sanction gives the opposing party the automatic win.

Finally, the judge may instruct the jury that evidence was destroyed and that, as a result, they (the jury) may presume the destroyed evidence was adverse or unfavorable to the party who destroyed the evidence.

Note that it may not be enough to defend against a spoliation allegation even if the evidence was destroyed in the ordinary course of your business, such as in compliance with your corporate retention policy.   If your duty to preserve evidence arises prior to the destruction of the evidence, that you followed your company policy will not suffice as a defense.

Preservation of evidence is an issue even in family law litigation such as divorce or custody matters. Dallas County and all surrounding counties have "Standing Orders" that become effective immediately upon the filing of a family law action. Those Standing Orders are intended to preserve the status quo during the pendency of the litigation and include the preservation of property, documents and other potential evidence.

If you have questions or if you have reason to believe there is a substantial chance a claim will be filed and that evidence in your possession or control will be material and relevant to that claim, contact me at [email protected] to discuss how to satisfy your obligation to preserve evidence. Early action negates the potential for business disruption, costs and sanctions.