Spoliation Letter – Preserving Evidence

Gathering Evidence

Spoliation letters are powerful tools that can help win your case. Such letters should be sent immediately after your injury to demand that the opposing side preserve certain evidence while you recover. Spoliation letters should be tailored to each case requesting certain information to be kept and maintained throughout the claim process. All letters should be sent certified mail return receipt to confirm that the opposing side was actually notified of what to keep. In many circumstances it is best to send these letters to everyone that may be involved – store owner, owner of premise, insurance company providing coverage.

Effect of Spoliation Letter

A spoliation letter will ensure that certain evidence is preserved. This could be videotapes taping your fall, cleaning records showing who was at the premise and when the last cleaning was done, as well as travel path logs to determine if inspections were done and at what time. Such evidence is routinely destroyed by store owners, which would be the best evidence to show that they were at fault for causing your injuries. Once destroyed you are left relying on employees indicating that such events occurred without further objective proof. Employees are always going to side with their employers!

Destruction of Evidence

Many judicial consequences are available if evidence is destroyed after a person receives a spoliation letter. Each consequence depends on the facts of each case and the seriousness of what the person did and what was destroyed. In many circumstances the judge will instruct a jury that certain evidence was spoiled which if kept would have allowed the injured person to show that the Defendant was at fault. In these situations, the presumption is maintained and must now be rebutted by the Defendant, which in essence shifts the burden on the other side. Another consequence may be that the jury is charged with certain admissions/stipulations of fact, i.e. A cleaning was never done; an inspection wasn’t conducted; the Plaintiff fell on water that was not cleaned by an employee who was present. This consequence yet again shifts the burden on the Defendant to show otherwise by bringing in additional evidence. The most serious consequence from spoiling evidence is that a Defendant’s answer is struck, which means that the court has already found them at fault. In these cases the only issue for the jury to decide is the damages.

Example Spoliation Letter

SPOILATION LETTER IN CONTIPLATION OF FUTURE LITIGATION

Dear Legal Department,

            Please be aware that my firm represents ___________ as a result of a slip and fall which occurred on ___________________  at _______________  Georgia (the Accident).  This letter is to formally demand the preservation of certain evidence related to my client’s injuries, the cause of those injuries and evidence relating to the accident.  If you fail to properly secure and preserve these important pieces of evidence it will give rise to the legal presumption that the evidence would have been harmful to your side of the case.  Furthermore, if you fail to preserve and maintain this evidence, we will seek any sanctions available under the law.  Please see: Court of Appeals of Georgia v. Bailey Brothers Realty, Inc., 2010 WL 2652453 (Ga. App. June 6, 2010).  The destruction, alteration, or loss of any of the below constitutes a spoliation of evidence under Georgia law.   We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any manner:

1. Any daily logs for the day of the Accident;
2. All reports relating to the Accident involving my client and any other slip and falls which have occurred at _________________ for a period of one (1) year before the Accident;
3. All existing daily, weekly, monthly and yearly incident, repair and/or inspection reports relating to the source of the liquid which caused my client’s accident if the source has been identified;
4. All video recordings at the __________________ on the day of the Accident. Please maintain and preserve all videos, not limited to videos showing the immediate scene of the accident;
5. All video recordings at Kroger at Ansley Mall for the three (3) days before the Accident and the three (3) days following the Accident;
6. Photographs, video, computer generated media or other recordings of the area immediately surrounding the Accident, the Accident itself or the source of the liquid which caused the Accident;
7. Any lease contracts or agreements covering the source of the liquid which caused the Accident, if the source has been identified;
8. Any post-Accident maintenance, inspection or repair records or invoices regarding or related to the accident;
9. Any e-mails, electronic messages, letters, memos or other documents concerning this Accident;
10. Any manuals, guidelines, rules or regulations given to employees present at the _________________ at the day of the Accident;
11. Any reports, memos, notes, logs or other documents evidencing complaints about a liquid leak similar to the one which caused the Accident;
12. All cleaning or other inspection reports on the day of the Accident and the three (3) days prior to and following the Accident;
13. A list of all employees working on the day of the Accident, including each employee’s location at the time of the Accident, their duties at the time of the Accident;
14. The entire personnel file of all employees working on the day of the Accident; and
15. Any and all computer, electronic, or e-mail messages of any type created in the seven (7) days prior to the Accident and the first seven (7) days immediately after the Accident, by and between the store, its employees and any agents or third parties, as well as any computer messages which relate to this particular accident, whether generated or received by you or your agents. We require you to put any vendor which hosts or stores this data for you on notice of the need to preserve this.