How dare you "spoil" my evidence!

         Sometimes in a case evidence can “disappear” for lack of a better word. In California, this is referred to as “spoliation”, which means evidence is destroyed, altered, or not preserved for use in litigation. See Hernandez v. Garcetti (1998) 68 Cal.App.4^th 675, 680. Spoliation can be unintentional or intentional. Unfortunately, when spoliation occurs, there is not much of a legal recourse available because the courts take the position that spoliation is not a viable cause of action. See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4^th 1. Alas, there may be a way to still protect your case if the evidence “disappears”. One way to protect your case is to send a “notice to preserve evidence” to the other side. The notice to preserve evidence is a request that the other side not discard of what you consider to be evidence in a case. Usually, the notice is sent before a lawsuit is filed.

            Now, let’s apply the notice to preserve in a hypothetical case where a client pedestrian was hit by a car. The driver of the car denies the accident ever took place or denies being at fault. (This is referred to as “arguing in the alternative” where the defendant somehow can deny an accident even happening but just in case the accident did happen then it was not the driver’s fault). As is my policy, I personally investigate the scene where the accident happened. I see pieces of a vehicle and tire tracks embedded in the dirt. We take photos of the debris and tire tracks. We then track down the driver and his/her vehicle. Before the lawsuit is filed we send the notice to preserve where, in the notice, we list what we ask be kept because of the pending lawsuit. If during the litigation the notice to preserve is disregarded and the evidence “disappears”, there may not be a cause of action but a trial judge can be asked to sanction the other side for failing to keep evidence after having “notice” to preserve that evidence. Sanctions can range from a simple warning to a more severe denial of a defense by the other side. The range of sanctions varies widely and usually depends on the circumstances of each case (e.g. was there a notice to preserve; who discarded the evidence; can the evidence be salvaged). The more egregious the conduct, the more severe the sanctions a court would impose.

            All in all, there may not be a cause of action to sue for spoliation of evidence, but the court can fashion a remedy powerful enough to affect the outcome of the case. When confronted with a case where evidence may disappear, intentionally or unintentionally, consider sending out a notice to preserve.