Spoliation of Evidence: How a Pre-Trial Evidentiary Issue Can Make or Break a Lawsuit

By: Kirk A. Kaczmarek

Evidence is critical to litigation — every legal argument made in the courtroom needs supporting evidence. So, it is not surprising that TV and film depictions of courtrooms often depict attorneys introducing bombshell evidence or proclaiming “Objection!” to spectacularly win a case. However, these Hollywood dramatizations fail to show that many of the most important evidentiary issues are resolved before trial. By confronting these evidentiary issues early, your attorney can increase the likelihood of winning in court or obtaining a favorable settlement.

Prior to trial, the parties undergo discovery wherein they ask each other to produce documents, answer questions, admit facts, or take depositions of witnesses. Missouri law requires that the parties respond to discovery requests truthfully and thoroughly. Unfortunately, parties sometimes violate these requisites by engaging in spoliation, which carries significant negative consequences.

Defining Spoliation of Evidence

Spoliation includes destroying, significantly altering, concealing, and suppressing evidence; it can even include failing to take adequate steps to determine whether evidence exists. The following is a non-exhaustive list of examples of spoliation:

• Erasing e-mails, text messages, or voice recordings.
• Choosing not to provide a requested document merely because it would damage your position, and not due to a valid objection.
• Editing a document, photoshopping a picture, or cutting content from a video to conceal relevant facts.
• Failing to produce a document because you did not make an earnest effort to look through your files to find it.

If the Court finds that a party engaged in spoliation of evidence, then the spoliator is subject to an “adverse inference,” which is an admission that the spoliated evidence would have benefitted the opposing party. The adverse inference can cause even a relatively insignificant piece of spoliated evidence to become more damaging than if it had simply been produced. Spoliation can significantly impair the spoliator’s credibility, and decreases the likelihood of winning a case.

Protecting Yourself Against Spoliation

Litigants should (1) make sure they do not spoliate evidence and find themselves subject to the adverse inference, and (2) be ready to fight against an opposing party that spoliates evidence. The best way to cover both of these bases is by hiring a competent and experienced attorney as early as possible.

There is a fine line between spoliating evidence versus making valid objections to evidence and either not producing it or producing evidence only subject to those objections. An attorney is equipped to make these legal determinations and can potentially keep certain evidence out of the courtroom without spoliating the evidence. In this way, attorneys can help you respond to discovery requests accurately and thoroughly without giving away information that could or should have been withheld. Additionally, a good attorney will also be privy to various methods of backing up records to avoid accidentally placing yourself in a position where the opposing side might levy allegations of spoliation against you.

Furthermore, attorneys often employ methods to prevent other parties and non-party witnesses from spoliating evidence. For example, an attorney may send “preservation letters” to opposing parties and non-party witnesses notifying them to preserve documents related to the matters at issue in the lawsuit. Ideally, the preservation letter would prevent spoliation outright, allowing the attorney to use all the evidence available to make strong arguments in the courtroom.

But even with preservation letters, parties sometimes still spoliate evidence. In these circumstances, a carefully drafted preservation letter establishes a paper trail to help show spoliation to the Court. Additionally, an experienced attorney will have an idea of what kinds of evidence should be available in your case, and can identify scenarios where spoliation might have occurred, giving you the chance to take advantage of an adverse inference.

Contact Us

The attorneys at Carnahan Evans are prepared to guide you through every stage of litigation and advocate fiercely on your behalf to produce the best opportunity for a favorable result. Visit our website or call us at 417-447-4400 to discuss how we can help.

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Kirk A. Kaczmarek is an associate in the litigation/dispute resolution and transactional practice groups of Carnahan Evans PC. He can be reached at kkaczmarek@carnahanevans.com.