When someone is injured in an accident the first priority is always to ensure that the injury is promptly treated. As the aftermath of an accident unfolds, a potentially huge array of important information can be generated and recorded. Things like photos of the scene, the identities of witnesses, and specific conditions of the drivers and their vehicles can all play important roles in any ensuing litigation. If one side of the litigation deliberately or negligently destroys or loses track of evidence (what the legal community calls “spoliation” of evidence) the consequences for that side of the case can be significant.
Intentional versus negligent spoliation of evidence
Spoliation of evidence falls within a spectrum. At the most serious end are acts to deliberately destroy evidence that might serve to help the other side or hurt your own. For example, if a driver potentially caused an accident while distracted by his cell phone, he would commit spoliation if he threw away the phone to eliminate the possibility of it being investigated for evidence of his use at the time of the accident. In such cases the party that has committed the willful act of spoliation will be subject to a rebuttable presumption that the evidence so destroyed would have been adverse to the party. In short, the plaintiff in the case could rely on the defendant’s missing cell phone to prove that he was using it, even though the phone itself was not available. NRS 47.250
At the less extreme end of the spectrum lies negligent
destruction of evidence. In the cell phone example, if the defendant simply lost his cell phone, perhaps because it fell out of his pocket on the bus leaving the accident, he might argue that the loss of the phone wasn’t deliberate. Courts have leeway to hold negligent spoliation against the party that caused it, but absent proof of intent there may be more leniency given depending on the circumstances.
What sort of evidence should you preserve?
Spoliation of evidence works in both directions in a trial. The plaintiff and the defendant each have an obligation to take steps to ensure that evidence doesn’t get lost or destroyed before it can be analyzed and made a part of the litigation. Any evidence that could be used to tell the story of the accident and the injuries suffered by the plaintiff could be subject to spoliation. In addition to the cell phone example cited above, there are many other kinds of evidence that could be germane, such as these:
- Photos taken after the accident.
- Damaged cars themselves, especially if the damage tells a story and is repaired without at least first being photographed and documented.
- Notes taken after an accident, especially if they include the names and contact information of witnesses who otherwise are unknown.
When a defendant causes spoliation of evidence the plaintiff can gain a significant advantage. Someone who has been injured in an accident and feels that important evidence has been lost or destroyed should not give up hope of recovering compensation. An attorney can examine the facts of the case to determine whether a claim of spoliation is likely to succeed.
The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and auto accident cases for over 45 years. We are happy to provide free attorney consultations to help injured individuals examine their legal options. Call us today at 702-388-4476 or through our contacts page