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What Happens if Evidence is Lost or Destroyed?


One of the biggest concerns for injury victims is how evidence that is needed to prove their case will be saved or preserved if the other side has it. Put simply: What prevents a party that’s being sued for negligence from simply “losing” or destroying evidence that can be used to prove that party’s liability?

Destroying Evidence in an Injury Case

Although secretly destroying evidence that could incriminate someone makes for a good movie plotline, in reality, it’s illegal. The destruction of possible evidence in a lawsuit is called spoliation. When a party is in possession of an item that it is on notice could be evidence in a case, there is a legal duty to preserve the evidence as best as possible.

In most cases, lost or spoliated evidence is inadvertent—for example, the routine deletion of emails, or the automatic overwriting of a video recording on a security camera. But sometimes, there are more insidious reasons for lost or destroyed evidence.

Other than the victim, evidence can be in the possession of two parties—the party being sued (the defendant), or third parties unrelated to the case.

An example would be if you are in a car accident, and the doctor has records of your injuries. The doctor isn’t a party to the case, but certainly has information (your records) that constitutes potential evidence in your case. Another example would be a car mechanic that fixes an airbag that negligently deployed before an expert has the chance to examine it.

Who Is Liable for Spoliation?

When a third party loses or destroys evidence, a victim can sue that party for the loss. The problem is showing damages for the destruction of the evidence. To do that, a victim has to show that the destruction deprived them of the ability to win damages in the underlying injury case. That means that the injury case against the negligent party has to be tried first (and possibly lost because of the loss of the evidence) before a third party can be sued for destruction of evidence.

What if it’s the defendant that lost or destroyed evidence? There is generally no way to sue a defendant separately for losing evidence. Rather, the loss or destruction must be brought forth in the injury lawsuit itself. Rather than damages for destroying evidence, the court will generally impose a sanction against the defendant.

That sanction can be severe, such as a presumption that the evidence, if it did still exist, would say or reveal what the victim says that it would have. The court may also prohibit a defendant from arguing certain defenses as punishment for the loss or destruction of evidence.

This is why it’s so important to notify the possible defendants in the care in writing to preserve crucial evidence.

Make sure your injury suit is pursued aggressively and diligently. Contact the Celeste Law Firm in West Palm Beach today for a free consultation to discuss your injury lawsuit.


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