The Mysterious World of Evidence Retention and Spoliation

Your site superintendent, the one that took all of those great jobsite photos while construction was ongoing, quit … or maybe he or she just lost a phone. The owner and GC are at odds, you’re not getting paid, and you just got served with a 48-hour notice and spoliation letter because of roof leaks caused by the HVAC penetrations. Now what?

First, what is spoliation?

Spoliation is a legal term that means the loss or destruction of potentially relevant information (evidence) that a party was under a duty to preserve for litigation. Once a person knows or should reasonably know there is a substantial chance a claim would be filed against them, that person is under an obligation to retain evidence that could bear on the dispute. This is the primary reason that lawyers will send out spoliation letters early in a dispute — that letter shifts the burden of retaining potential evidence onto the recipient.

What is the potential consequence?

Failure to retain this potentially relevant information/evidence can result in the judge issuing a ruling that the jury should infer that the evidence would have been helpful to the party seeking it and harmful to the party who failed to retain. This kind of ruling can greatly tip the scales in favor of the seeker because it is so damaging to the other person’s credibility.

Of course, if the party who didn’t retain had no reason to know the “lost” evidence might one day be needed in a legal proceeding, there’s no duty. But who gets to decide whether the party should “reasonably know” and whether the information was “potentially relevant?” Of course, that’s the judge, after he or she has been harped on by the other side about how careless — or worse — the “offender” has been.

How to Be Proactive

Sometimes spoliation can’t be helped. If there’s a fire or flood and existing work has to be sacrificed to render an unsafe condition safe, a spoliation instruction should not be issued. But most of the time, spoliation occurs because a person or company didn’t have a document retention policy in place. Photographs — lots of photographs — should be taken and saved to a cloud account. Not the cell phone or even the company computer. Daily logs, safety meeting notes, JHAs, accounting records, etc., should all be saved in some sort of cloud-based CRM software. The text message feature on cell phones should be set to “never delete” or should be backed up as often as needed to ensure that those key text messages are retained. Important calls should be confirmed via text or email and noted in the company daily logs. And, of course, you need a document retention policy that retains emails and other documents in their native format for at least two years or longer if your projects span long periods.

Am I suggesting that you manage your business as if a lawsuit is coming? In some respects, I am. Luck favors the prepared; and those of my clients who retain information, oftentimes for much longer than two years, have consistently fared better in the face of a real or threatened lawsuit. With the advent of cloud-based storage at ridiculously low rates and high-capacity scanners, there is no longer any reason to “thin out the herd” by deleting old emails, photographs, documents, etc. Protect yourself from potential spoliation issues by retaining your documents.

Author’s note: This article is provided for educational reasons exclusively and is not meant to be construed as legal advice. Ensley Benitez Law, PC, will represent you only after being retained and that agreement is made in writing.

About the author: Karen Ensley is a Board-Certified Construction Law Attorney with Ensley Benitez Law, PC, in Dallas, Texas. She can be reached at (469) 983-6500 or [email protected].