Spoliation of evidence is a seemingly obscure subject that can greatly
impact businesses and people alike. The term pertains to the legal impact
of destroying evidence that is relevant to a lawsuit.
Colorado Courts have established that a person has a duty to maintain and
preserve evidence if the evidence is relevant to “pending, imminent,
or reasonably foreseeable litigation.”
Castillo v. Chief Alternative, LLC, 140 P.3d 234, 236 (Colo. App. 2006). In other words, if you are involved
in an incident or dispute and it appears that a lawsuit will stem from
it, you have a duty to preserve all evidence associated with the incident.
This includes a duty to preserve videos, documents, photographs, tangible
While this duty to preserve evidence is relatively simple for individuals,
the process can be far more complicated for businesses. Many businesses
have company procedures for maintaining and destroying documentation or
other company data over certain time periods. These protocols for destruction
of company property can give rise to spoliation issues if the business
doesn’t modify the protocol when it receives notice of reasonably
foreseeable litigation. As an example, Jorgensen, Brownell & Pepin
was recently successful in imposing discovery sanctions upon a business
for failing to preserve video evidence. In that lawsuit, the business
received notice that its intoxicated patron was involved in a serious
car accident after leaving the establishment. The Court determined that the business
should have modified its protocol for monthly destruction of video footage
after it received notice that a lawsuit could result from the incident.
If a Court determines that a party destroyed relevant evidence even though
future litigation was reasonably foreseeable, the penalties are potentially
serious. These penalties can include an award of attorneys’ fees
associated with discovery motions on the issue, and more importantly,
Courts can employ an adverse inference jury instruction at trial. An adverse
inference instruction means that the jury would be informed by the Court
that the destroyed evidence may have been unfavorable to the party that
destroyed the evidence. Litigants that successfully obtain this jury instruction
can use it to pursue favorable jury verdicts and favorable settlements.
In short, spoliation of evidence is a serious and potentially complicated
issue. If you are involved in a dispute where some of the evidence has
gone missing, you should seek counsel from the attorneys at Jorgensen,
Brownell & Pepin as soon as possible.