Consequences of Failing to Preserve Evidence
In Washington, parties to a lawsuit have the opportunity to obtain a broad range of information and documents from another party (and non-parties) through a process called discovery. During the discovery phase of a lawsuit, a party can, among other things, (1) ask another party for information using written questions called interrogatories, (2) request that the other party produce documentation, and (3) perform an inspection of land or other property possessed by another party. Of course, there are times when a party simply does not have—and never had—what another party is requesting. Other times, however, a party had what another party is requesting but failed to preserve such evidence.
Some may wonder what can happen if a party fails to preserve evidence. This article explains the potential consequences of failing to preserve evidence by providing a summary of Washington’s spoliation jurisprudence.
Nearly fifty years ago, the Washington Supreme Court noted that “where relevant evidence which would properly be part of a case is within the control of a party whose interests it would naturally be to produce it and he fails to do so, without satisfactory explanation, the only inference which the finder of fact may draw is that such evidence would be unfavorable to him.” Pier 67 v. King County, 89 Wn.2d 379, 385-86, 573 P.2d 2 (1977). In more recent years, Washington courts have refined what is known as “spoliation” and have outlined what remedies exist if a party fails to preserve evidence without a sufficient explanation.
Spoliation is a legal term of art. Courts have defined spoliation as “the intentional destruction of evidence.” Henderson v. Tyrrell, 80 Wn. App. 592, 605, 910 P.2d 522 (1996). Because spoliation encompasses a broad range of acts, a finding of bad faith is not required. However, a party must do more than simply disregard the importance of evidence to support sanctionable spoliation.
Where the evidence supports spoliation, courts can impose a broad range of remedies in the form of sanctions, including: (1) applying an adverse inference instruction, meaning an inference that the evidence would not have been favorable to the party who failed to preserve the evidence; (2) shifting the burden of proof from the plaintiff to a defendant; (3) imposing discovery sanctions, including but not limited to precluding a party from introducing certain evidence and/or monetary sanctions; and (4) ordering a judgment against the party who spoliated evidence. In short, the consequences of spoliating evidence can be harsh.
To determine whether a spoliation sanction is appropriate—and if so, what type of sanction is appropriate—courts generally weigh (1) the potential importance or relevance of the missing evidence, and (2) the culpability or fault of the spoliating party. The potential importance or relevance of the missing evidence depends on the particular circumstances of the case as well as whether the adverse party had an opportunity to examine the missing evidence.
In determining a party’s culpability, courts often consider whether the party acted in bad faith, whether the party had a duty to preserve the evidence, and whether the party knew that the evidence was important to the pending litigation. In other words, courts consider whether a party has an innocent explanation for why the evidence was deleted or not preserved.
A hypothetical helps explain how spoliation can occur. Consider a homeowner who hires a contractor to install new windows in their home. After the contractor completes the work, the homeowner believes they see signs of water intrusion and mold growth. The homeowner concludes the contractor performed defective work. Instead of dealing with the headache of notifying the contractor about the issues or documenting the mold growth and water intrusion, the homeowner proceeds with a DIY project with a handy family member to remove mold growth and seal the windows to prevent additional water intrusion. The DIY project ends up costing the homeowner thousands of dollars. Considering the thousands of dollars spent to repair the defective work in combination with the thousands of dollars the homeowner paid the contractor, the homeowner decides to bring a claim against the contractor. When the contractor requests an inspection of the property and asks for all documentation related to the homeowner’s claims, the homeowner is forced to tell the contractor that the allegedly defective work was repaired, and no documentation exists.
In the above hypothetical, the homeowner may have committed sanctionable spoliation. There is no question that evidence of mold growth and water intrusion in the form of photos and/or videos would be relevant to whether the contractor’s work was the cause of water intrusion and/or mold growth. Furthermore, the contractor never had an opportunity to inspect the residence after the homeowner discovered signs of mold growth and water intrusion. As for the homeowner’s culpability, if the homeowner knew all along that they intended to bring a claim against the contractor, yet made the decision not to notify the contractor until repair work was completed, a court could very well conclude that the homeowner knew the evidence was important and therefore lacks an innocent explanation for why the evidence was not preserved. If a court did conclude that the homeowner committed sanctionable spoliation, the court could apply an adverse inference instruction, order the homeowner to pay monetary sanctions, or even dismiss the homeowner’s claim.
As the above hypothetical demonstrates, parties should always err on the side of caution and preserve evidence whenever there is even a possibility of litigation. A failure to do so can result in harsh consequences.
Engaging legal counsel earlier rather than later is always beneficial, especially when spoliation may be an issue. Legal counsel can help you avoid a spoliation claim if you are the party with the evidence that should be preserved. Furthermore, legal counsel can help you develop a potential spoliation claim if you are the party who lacks access to evidence that should be preserved. The lawyers at Beresford Booth are available to discuss details and to help you navigate your specific situation. Please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.
