Spoliation of Evidence

What Is Spoliation Of Evidence?

Spoliation is the loss of evidence by a party who had a duty to keep it. The duty arises when the party knows or reasonably should know that the evidence is relevant to litigation that is pending or reasonably foreseeable; a business that has just had a customer carried out on a stretcher is on notice, and so is a driver who has just been in a serious crash. Spoliation includes outright destruction, alteration, and simple failure to preserve, such as letting a video system overwrite itself after a claim has been made.

Intent matters to the remedy, not to the definition. Deliberate destruction supports the strongest inference and the harshest sanctions. Negligent loss still supports an inference in many circumstances, because the party was responsible for the evidence and its loss has deprived the other side of proof. What does not count is the routine loss of information nobody had reason to keep.

What Is The Remedy For Spoliation In North Carolina?

The adverse inference. North Carolina courts permit a jury to be instructed that when a party destroys or fails to preserve evidence it knew or should have known was relevant, the jury may infer that the evidence would have been unfavorable to that party. The inference is permissive, not mandatory; the jury decides whether to draw it, and the responsible party may offer an innocent explanation. But in a case that turns on what a video or a data download would have shown, the instruction can decide the outcome. The remedy is generally applied inside the injury case itself, through the instruction and through evidentiary rulings, rather than as a separate lawsuit.

Discovery sanctions add teeth once a suit is filed. Under N.C. R. Civ. P. 37, when a party fails to obey an order to provide or permit discovery the court may order that designated facts be taken as established, refuse to let the disobedient party support or oppose designated claims or defenses, prohibit it from introducing designated evidence, strike its pleadings, dismiss the action, or enter a default judgment, and must ordinarily award the expenses and attorney fees the failure caused. The rule also contains a limit: absent exceptional circumstances, a court may not sanction a party for electronically stored information lost through the routine, good-faith operation of an electronic system. That limit is exactly why a written preservation demand matters, because once the demand is received, continued overwriting is no longer routine or good-faith.

How Does A Preservation Letter Work?

A preservation letter, sometimes called a spoliation letter or litigation hold letter, is a written notice to a person or business that a claim exists, that specific categories of evidence are relevant to it, and that the recipient must preserve them. It is sent by certified mail or another method that proves receipt, identifies the evidence as precisely as possible (the camera covering aisle seven between 2:00 and 3:00 p.m. on the date of the fall), and asks for written confirmation. Its purpose is to remove any argument that the recipient did not know the evidence mattered.

Once a lawsuit is filed, the Rules of Civil Procedure take over. N.C. R. Civ. P. 34 lets a party request production of documents, electronically stored information, and tangible things and entry onto property to inspect, measure, photograph, and test; the response is due in 30 days, or 45 days for a defendant served with the complaint. N.C. R. Civ. P. 45 reaches non-parties: a subpoena, which an attorney may issue as an officer of the court, can command a business or a phone carrier to produce records, electronically stored information, or tangible things, subject to a written objection within 10 days. The officer’s crash report, required within 24 hours under N.C. Gen. Stat. § 20-166.1, is a public record that should be obtained in the first week regardless.

• Day one: preservation letters to every holder of evidence; request the crash report.
• Before the vehicle is released: written demand to hold it; inspection and data download.
• After filing: Rule 34 requests to parties; Rule 45 subpoenas to non-parties.
• If evidence is gone: motion for sanctions under Rule 37 where an order was violated; request the adverse inference instruction at trial.

What Does Spoliation Look Like In A North Carolina Injury Case?

A worked example: Darnell slips on a liquid spill in a Charlotte grocery store and tears a ligament in his knee. Three days later his lawyer sends the store a preservation letter identifying the date, time, aisle, and camera, and asking for the sweep logs and incident report. The store’s claims administrator acknowledges the letter. Nine months later, in discovery, the store produces no video and says the system overwrote it after 30 days. Because the store had written notice within the retention period, the loss was not routine good-faith operation. Darnell’s lawyer moves to compel, obtains an order, and when the store cannot comply, asks the court for a Rule 37 order establishing that the spill had been on the floor long enough for the store to have discovered it, and alternatively for the adverse inference instruction at trial.

The store’s contributory negligence defense, that Darnell should have seen the spill, now faces a jury that may assume the video would have shown the hazard was hard to see and had been there for some time. The case settles before trial. Without the preservation letter, the store’s explanation would have been plausible, the Rule 37 limit on sanctions for routine data loss would have applied, and Darnell’s case would have rested on his word alone.

Why Does Spoliation Cut Both Ways In A Contributory Negligence State?

Because the injured person holds evidence too. In North Carolina a plaintiff whose own negligence contributed to the injury recovers nothing, and under N.C. Gen. Stat. § 1-139 the defendant must prove that negligence. The defense will therefore ask for the plaintiff’s phone records, the plaintiff’s vehicle data, the plaintiff’s social media, and the plaintiff’s own photographs, looking for distraction, speed, or an admission. A plaintiff who deletes posts, replaces a phone without preserving its contents, or lets a damaged car be scrapped before the defense can inspect it invites the same adverse inference, aimed at the one issue that can end the case.

The rule for an injured person is simple: preserve everything, including what seems unhelpful. A text message sent two minutes before a crash is far less damaging than a deleted message the jury is told to assume was worse. Candor about the evidence, and early control of it, is the most reliable defense to a contributory negligence argument built on what is missing.