Preservation of Evidence Letters


If you’ve been injured in an accident that was caused by another party’s negligence, you may be considering taking civil action against the at-fault organization or individual. A personal injury lawsuit can help recover monetary damages a victim has suffered as a result of a slip and fall, motor vehicle or motorcycle accident, or other negligent actions on the part of another.

In these situations, it’s crucial to preserve any relevant evidence that can bolster your personal injury case. It’s very likely that the evidence you will need may be in the hands of the at-fault party. For example, surveillance video capturing a slip and fall could be in the possession of a retail store’s loss prevention department. Surveillance video is often only saved for a certain period of time before being purged. Unless there is a reason for it to otherwise be kept, evidence of your slip and fall could be lost forever if you don’t act to preserve it.

Although more calculating in nature, it’s also possible that the store could purposely choose to destroy evidence before it can be reviewed by you or your attorney in order to mitigate their liability in a civil suit.

There are actions that you and your attorney can take to ensure that relevant evidence from an accident is preserved ahead of a personal injury lawsuit, but they will need to be taken as quickly as possible following the accident. Contact the personal injury attorneys at Omaha’s Berry Law to find out what steps you should take next to receive the maximum compensation you deserve.

What Is an Evidence Preservation Letter?

A preservation letter, also known as a preservation demand or preservation notice, is written communication sent by a would-be plaintiff’s legal team to the defendant requesting that any evidence he or she may have that is pertinent to the case be preserved. This could include videos, photographs, witness statements, copies of documents, electronically stored information (ESI) such as emails, or other types of evidence.

In the case of a motor vehicle accident, an evidence preservation letter could be used to ask that the defendant preserve his or her vehicle until it can be inspected and photographed by a plaintiff’s legal team. In an accident involving a tractor trailer or other commercial vehicle, a preservation letter may include a request for the driver’s logs or other company records to be preserved for future review.

What Information Does an Evidence Preservation Letter Include and When Should It Be Sent?

An evidence preservation letter should be sent to the at-fault party as soon as possible following the accident to ensure that relevant evidence is not destroyed. It’s not necessary to have already filed a lawsuit in order to send an evidence preservation letter. Such a letter should include the following:

  • Notice of pending litigation (a statement that the injured party plans to file a lawsuit)
  • An explanation of the complaint against the individual or company
  • Facts that outline the reason for the evidence preservation request
  • A request to preserve specific types of evidence in their possession
  • The dates of the preservation requirements (at what point in time evidence should be saved)
  • A request for identification of particular individuals who would hold relevant evidence and the name of the individual or individuals who will be responsible for evidence preservation

Send the letter directly to the defendant and cc his or her insurance company or legal team, where applicable. Keep a copy of the evidence preservation letter so that you have proof that it was sent and received. The easiest way to do this is to send the letter via certified mail with a return receipt requested.

When Is an Individual or Company Required to Preserve Evidence?

There are rules regarding how information and evidence should be preserved and produced in civil disputes. It’s up to the court to decide whether a duty to preserve evidence existed. That decision often includes consideration of the conduct of the defendant and any events or information that would have triggered an obligation to preserve evidence.

There is no general legal duty to preserve evidence before a civil suit is filed, threatened or foreseen. Without notice of an investigation, pending or likely litigation, or other source of duty to preserve evidence, a company or individual usually has the right to dispose of their own property, including documents, ESI, or tangible items without any liability.

Common law duty to preserve evidence begins at the moment that a lawsuit is reasonably anticipated. The court will ultimately decide who had a duty of preservation and the scope of the preservation obligation by a company or individual in situations where:

  • An individual or organization expressed that they planned to initiate a lawsuit.
  • A potential defendant received a letter of preservation.
  • A company learned that a former employee was contemplating litigation.
  • An event or other circumstance, such as a catastrophic injury or fatality, that would reasonably make a company or an individual believe that a lawsuit would be likely to be filed in the future.

Essentially, an individual or company has an obligation to preserve evidence that exists if a reasonable person in the defendant’s position would have foreseen that evidence was relevant to a potential lawsuit.

Requiring preservation of evidence before a law suit has even been filed prevents the possibility that a defendant could impede the fair administration of justice by destroying evidence before the plaintiff can file a claim. The receipt of an evidence preservation letter triggers a company’s or individual’s obligation to preserve evidence in the eyes of the court.

What Happens if the Defendant Destroys the Evidence Anyway?

When a law suit is filed, threatened or reasonably anticipated, a would-be defendant is under an obligation to safeguard data, documents, and other tangible evidence. Under the law, there is a duty to preserve such information, including electronically-stored files for the reasons stated above or in cases where a contract exists that requires it, an organization has voluntarily assumed a duty to do so, a statute or regulation is in place, or an ethical code or other circumstances are at play.

In these situations, the court may uphold a defendant’s obligation to preserve relevant evidence. Failure to do so is called spoliation, and the potential consequences of destroying relevant data, documents or physical evidence can be serious, including sanctions by the court for destruction of evidence.

If a defendant destroys evidence he or she was asked to preserve anyway, even after the receipt of an evidence preservation letter, the plaintiff’s legal team may be able to get an instruction read to the jury at trial. An instruction tells the jury that the evidence in question was in the defendant’s control and that the defendant destroyed it. The jury is then to assume from the instruction that whatever evidence was destroyed would likely have harmed the defendant’s case and act accordingly.

Some states also allow a plaintiff in a case in which evidence has been destroyed to recover monetary damages for such actions.

What Steps Should I Take To Ensure That Evidence in a Personal Injury Lawsuit Involving Me Is Preserved?

Hiring an attorney with a background in personal injury law and a history in successful litigation is the first step to proceeding with civil action. He or she can assist in sending the necessary preservation of evidence letters and guide a client through the process of filing a claim. Very often, personal injury cases don’t end up before a jury. Most are settled outside of court.

Part of the negotiations process includes a step known as discovery. Both parties to a civil suit request relevant documents and records from the opposing party in order to see what evidence the other possesses. If one party has the opportunity to pursue discovery, or to find out what evidence the opposing party holds, and chooses not to do so, the court may later choose not to pursue spoliation sanctions or issue a jury instruction, even in cases where relevant evidence was destroyed. This is another reason that it’s vital to send a letter requesting evidence preservation as soon as possible following an accident and put the at-fault party on notice of your intentions to file suit.

Following a serious accident or injury, your focus will likely be on obtaining appropriate medical treatment and on the physical and emotional recovery of yourself or a family member. The thought of initiating a personal injury lawsuit may be the furthest thing from your mind. However, when it comes to receiving compensation for medical bills, rehabilitation, loss of wages, lost future earnings, property damage, and pain and suffering, a personal injury suit may be the only option to ensure that you receive what is owed to you.

While money can’t restore physical health, it can ease the financial burdens that are often placed on victims and their family members following a serious accident. Allow the personal injury team at Berry Law to handle the logistics of your civil case so that you can focus on healing. Reach out to our office today to schedule your consultation.

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