Spoliation: When You Must Preserve Evidence in Utah Lawsuits

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By Joseph G. Ballstaedt

801-895-3296

[email protected]

In Utah lawsuits, both sides have a duty to preserve and not destroy relevant evidence. This article discusses that duty and how a Utah court can punish a party who fails to preserve evidence. It also discusses other relevant issues, such as how to best preserve electronic evidence

What is spoliation?

In a lawsuit, one party often does not have the evidence it needs to prove its claims or defenses; the other party often has that evidence. For instance, if a contractor constructs a retaining wall on a homeowner’s property, and the homeowner sues the contractor for defective work, that retaining wall on the homeowner’s property is the best (and maybe only) evidence of both the homeowner’s claim for defective work and the contractor’s defense that the wall is not defective. If the homeowner destroys that wall, even to fix the defects, that evidence is gone, and the contractor can claim that the homeowner committed spoliation. Spoliation occurs in a lawsuit when a party destroys, conceals, alters, tampers with, or fails to?properly preserve?evidence. That evidence can be a tangible item (such as a wall), electronic?data (including information stored in a cell phone), or other evidence.

Spoliation occurs only if a party has a duty to preserve evidence. For instance, a homeowner complaining about a defective retaining wall does not have to keep the defective wall forever. But whether that duty exists and whether it remains is difficult to determine.

When must a party preserve evidence and avoid spoliation?

Does the duty to preserve evidence begin only once a lawsuit is filed? No. Although a party almost certainly has a duty to preserve relevant evidence once litigation begins, it also has a duty to do so if litigation is reasonably foreseeable. There is no bright-line rule on what makes litigation reasonably foreseeable, but it is based on an objective standard. The question is not whether a party actually anticipated litigation might occur but if, under the circumstances, a party reasonably should have anticipated such litigation.

Once a party has a duty to preserve, it doesn’t need to preserve all evidence—just relevant evidence or evidence related to or that could lead to relevant evidence. So in the retaining wall example above, the wall is certainly evidence the homeowner should preserve if it reasonably anticipates litigation, but the homeowner probably doesn’t have a duty to preserve the interior of the home, which likely has nothing to do with the issues related to the defective retaining wall. The homeowner can probably remodel its kitchen, but it probably can’t remove the retaining wall.

When does the duty to preserve end?

Once a duty to preserve triggers, does it last forever? Certainly not. Sometimes relevant evidence needs to be altered, destroyed, or cleaned up. For example, if a homeowner’s home burns down, it is probably reasonable to clear the debris so the home can be rebuilt. But if the homeowner believes a faulty appliance caused the fire, and if it wants to sue the manufacturer, clearing the debris right away probably violates its duty to preserve. But when can the homeowner clear the debris? Lawsuits can last years. If the homeowner chooses to rebuild before the lawsuit ends, does it forfeit its claims in the lawsuit? No.

A party who possesses relevant evidence can destroy the evidence in reasonable circumstances (another squishy, non-bright-line rule). What this means in Utah courts is that, before destroying evidence, a party usually has to have a reasonable basis to destroy the evidence, and then it has to provide the other party notice that the evidence will be destroyed and allow it to fully inspect that evidence. Such a notice should be given well in advance and explain:

• the factual and legal basis for the lawsuit or claim;
• the relevant evidence that will be destroyed;
• the reason that evidence needs to be destroyed;
• the date that evidence will be destroyed; and
• that the other party can inspect that evidence before and during its destruction.

What are the punishments for spoliation?

Utah courts have broad authority and discretion on how to punish a party that commits spoliation of relevant evidence. These punishments can include:

• Considering a certain fact established or prevent a party from opposing a certain claim (for example, if a party destroyed text messages that allegedly showed that two parties reached a certain agreement, that party may be unable to claim otherwise)
• Dismiss part or all of a claim or defense (for instance, if a homeowner destroys an allegedly defective retaining wall, it may be barred from claiming damages for that claim against the contractor, although it may be able to seek damages for claims unrelated to the retaining wall).
• Ordering the party who destroyed evidence to pay damages resulting from the failure (for instance, if evidence is destroyed, a party may need to pay the cost to obtain separate evidence proving the same fact).
• Instructing the jury of an adverse inference (for example, if a party destroys relevant evidence, the court can instruct the jury that the evidence should be presumed to harm that party).

On the one hand, Courts want lawsuits to be decided on the relevant facts and real-world events, not based on punishments in litigation. For that reason, courts sometimes want to avoid harsh punishments or sanctions. But on the other hand, without evidence, a case cannot be decided on the actual facts because the evidence of those facts is gone, so courts sometimes feel justified in giving harsh punishments for spoliation. The principle is that punishment should be “proportional to the need to punish and deter future violations,” and these considerations govern:

• The degree of fault of the party who destroyed the evidence (for instance, did key files get deleted through routine and automatic deletion systems, or did the party deliberately delete those files?)
• How much prejudice the other party suffers (for example, is a party entirely without key evidence since the only evidence was destroyed?)
• Whether a lesser sanction will avoid substantial unfairness to the other party
• Whether the sanction will deter others from engaging in similar conduct

How does a party preserve electronic evidence?

Physical evidence is very different from electronic evidence. Text messages on a phone, files in a computer, or emails in a party’s inbox exist in a different state than an allegedly defective retaining wall in your backyard. While preserving physical evidence usually simply requires inaction, that is not the case with electronic evidence. Preserving electronic evidence often requires affirmative action and inaction results in spoliation. Some computers, for instance, destroy data on a certain cycle, such as security camera footage that is automatically deleted every two weeks. Unless the party who holds that footage stops the automatic deletion process, the footage may be permanently lost once deleted. The same may be true for text messages in a person’s phone or emails on a server. Unless routine deletion processes are paused or the relevant evidence is duplicated before automatic deletion occurs, the evidence may be lost forever. In fact, often times it may be necessary to tell another party how to adequately preserve information. People may not think to pause routine deletion or know how to do so. Sometimes a “preservation letter” is necessary that explains both the duty to preserve and how to preserve. For instance, such a letter may command the party to preserve text messages and then explain how to create a backup. ?

Who can help me address preservation issues and avoid spoliation?

If you engage in a lawsuit, and you have preservation and spoliation questions and concerns, you should talk with a qualified attorney. You may need to preserve evidence in your possession, or you may need to direct another party to preserve evidence and explain in a preservation letter both how that is done and the potential punishments for failure to do so. I am happy to help, and I offer a free consultation. My direct dial is 801-895-3296, and you can email me at [email protected].

Along with consulting an attorney, you may need the services of a computer forensics expert who can help you both preserve evidence in your possession and also help you preserve and obtain evidence in another party’s possession. Doing so may be the difference between winning and losing a lawsuit. Experts like John Troxel here in Utah offer such services.

By Joseph G. Ballstaedt

801-895-3296

[email protected]