The Duty to Preserve Evidence - A Refresher
LGC Staff
Mon February 23, 2015
7:42 PM UTC

By Dillon Coil

Most businesses and their employees are either unaware or ill-equipped to deal with the pre-litigation duty to prevent  intentional or negligent loss, alteration or destruction of relevant evidence, otherwise know as spoliation.  Depending on the jurisdiction and whether the evidence was intentionally or negligently lost, spoliation may result in drastic sanctions, most commonly an adverse inference of wrongdoing at trial.  However, most courts have broad discretion to award monetary sanctions, or in the most egregious circumstances, dismissal or summary judgment.

In Nevada, evidence that is willfully destroyed with intent to harm generally triggers the rebuttable presumption found in NRS 47.250. Bass Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006).  Evidence that is negligently destroyed, even inadvertently, will usually in an adverse inference at trial. Id.  However, the prevailing case law in Nevada also allows for ultimate sanctions.

For example, in Stubli v. Big D Int'l Trucks, 107 Nev. 309 (Nev. 1991), a truck driver's insurer retained an engineer to perform an investigation of the accident wreckage and prepare a report.  Once the insurer concluded the investigation, the wreckage was discarded, with only a few parts remaining in the insurer’s possession. The truck driver subsequently brought claims against the trailer manufacturer for design defects and against the truck company for faulty repairs.  When defense counsel eventually learned that the trailer had been discarded they sought dismissal of the driver’s claims, arguing it would be impossible to establish a defense. The court granted the request, which was ultimately upheld by the Nevada Supreme Court. The Court reasoned:

"Relevant evidence in this case has been irreparably lost due to the willful actions of Stubli's agents. A lesser sanction, short of deeming respondents' theory admitted by the offending party and granting summary judgment in respondents' favor, will not compensate for that loss. Although dismissal precludes adjudication on the merits and penalizes Stubli for the misconduct of his attorney and expert, such consequences are unavoidable and are outweighed by the need to remedy the unfair litigation practices employed in this case, and the benefit of deterring similar abuses in future cases."

Even when a spoliation claim fails, defending against such claims generally involves costly discovery and motion work, greatly increasing the length and cost of the litigation.  If the claim is successful, at minimum an adverse inference could garner a disproportionate share of the jury’s focus, confuse the issues, and threaten the defense.

Given the implications, claimants will seek every opportunity to allege spoliation, generally by exploiting a business’s relaxed practices and procedures or the ignorance of employees who may not anticipate potential claim or its implications.  It is critical the businesses and their employees understand not only what evidence must be preserved, but when the duty to preserve evidence is triggered.  This is best achieved by establishing robust formal practices and procedures based on competent legal advice tailored to the particular business.  Demonstration that such practices and procedures were followed leading up to litigation can be a powerful tool to quickly defeat a spoliation claim.

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