Don’t Let Your Evidence Disappear
How to Preserve Evidence
Documents, data, and people are critical to proving your case. Take, for example, your standard auto accident case. Important evidence would include: photographs of the scene and damaged vehicles, the accident report, witness statements, ESI Data from the vehicle, skid marks, components of the vehicle (i.e., a defective tire), video footage, cell phone data, and so on. If you do not act quickly to take steps to preserve evidence, you will lose it. After all, memories fade, witnesses go missing, data and video are overwritten, or component parts are destroyed. Evidence unfavorable to a party can be intentionally destroyed, concealed, or even doctored. Don’t let this happen to you.
To avoid this trap, you should send a letter of representation and notice of preservation immediately! A letter of representation is a letter from an attorney, addressed to the opposing party in a forthcoming lawsuit. In an auto accident case, the injured plaintiff’s attorney would send the letter of representation to the at-fault party’s insurance company and/or their attorney. The letter puts the at-fault driver on notice that all communication must go through the injured person’s attorney. The letter should include a part about preserving evidence. It should put the opposing party on notice that the at-fault driver must preserve evidence that may be potentially relevant to the case. If the at-fault driver receives this notice and does not take steps to preserve the evidence and the evidence is lost or destroyed, a court may impose sanctions on that party.
Welsh v. Gibbons – Destroyed, Lost, or Concealed Evidence Considerations
In Welsh v. Gibbons, 211 S.C. 516, 46 S.E.2d 147 (1948), the South Carolina Supreme Court recognized circumstances under which a jury should be able to consider missing evidence. In Welch, the plaintiff sued a bottling plant, alleging it sold a soft drink that contained poison. The plaintiff had in his possession the bottled drink, but neither tested the contents himself nor allowed the defendant to test its contents. The supreme court held “the evidence excluded was a circumstance which the jury should have been permitted to consider.”. Relying on the holding in Welch, the supreme court later upheld a jury charge which advised that “when evidence is lost or destroyed by a party an inference may be drawn by the jury that the evidence which was lost or destroyed by that party would have been adverse to that party.” See Kershaw County Bd. of Educ. v. U.S. Gypsum Co., 302 S.C. 390, 394, 396 S.E.2d 369, 372 (1990).
In other words, if a party destroys or conceals evidence – intentionally or unintentionally – and they are no notice to preserve the same, a court may impose fines, instruct a jury that the missing evidence would have been unfavorable to the party that failed to preserve it, or, in some cases, a court may even strike a pleading such that the case is dismissed or a defendant is stripped of their defenses.
Welsh v. Gibbons Put into Practice
I’ll give you a recent example. We represent crime victims who have been shot and killed at commercial properties. One of our former client’s son was staying at a motel in Florence, SC when he was shot and killed by a known drug dealer. The motel had cameras throughout the property. The motel owner testified those cameras were working. But the footage from those cameras (as well as other key documents) were lost and destroyed. On behalf of our client, we filed a motion for sanctions, which the court granted. The court struck the motel’s answer such that the defendant could not raise any defenses. As a result, the value of the case soared.
Send a notice of preservation immediately. Do not let your evidence disappear! And if it still does disappear, prepare to seek sanctions with the court
Mickelsen Dalton LLC.
An experienced attorney at Mickelsen Dalton LLC can help determine if you have a claim and advise you of your options. Our attorneys have successfully represented several victims in cases arising from trucking and towing accidents. Within the past three years, Mickelsen Dalton LLC has recovered over $50 million in verdicts and settlements on behalf of our clients. We have been featured in Fox News, the New York Times, the Washington Post, and several other national news organizations.
Past results are not a guarantee of future results. The information contained in this post is from news articles and may therefore contain inaccuracies. We will correct or remove this post upon request. The material contained in this post is not intended to constitute legal advice.