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What Happens When a Defendant Fails to Preserve Evidence?

What Happens When a Defendant Fails to Preserve Evidence?

In any personal injury lawsuit, it is critical for all sides to preserve evidence that may be relevant to the case. An unscrupulous defendant may attempt to avoid liability by destroying records and other evidence that may help a plaintiff prove his or her claim. Judges may sanction a party that engages in such “spoliation” of evidence. And, even in cases where sanctions are not warranted, failure to produce relevant evidence may still hurt a party's chances at trial, as a recent decision by a federal magistrate illustrates.

Singh v. Penske Truck Leasing Co., LP

The plaintiff in this case worked as a delivery driver. His employer leased its vehicles from the defendant. The defendant was responsible for the maintenance of the leased vehicles.

On the day in question, the driver was on his delivery route when he noticed a leak of hydraulic fluid from the liftgate at the back of the vehicle. He took the vehicle to one of the defendant's service centers, where it was repaired that same day. But, when the plaintiff took the vehicle to his next stop, the liftgate failed, causing the plaintiff to fall and suffer serious injuries. He later sued the defendant.

About nine months after the accident, the plaintiff's attorneys informed the defendant of their client's intention to sue. The defendant then conducted a review of its files to determine what records might be relevant to the litigation. The defendant eventually provided these files to the plaintiff as part of pretrial discovery.

There was a critical document was missing from the file, however: a written checklist prepared by one of the defendant's inspectors during a routine “preventive maintenance” procedure performed on the plaintiff's vehicle about eight days before his accident. The plaintiff said this checklist could help illustrate the quality of the defendant's maintenance program. The defendant had no explanation for why the checklist was missing.

The plaintiff moved for sanctions, either a default judgment or a future instruction to the jury allowing it to draw an “adverse inference” against the defendant. In an order issued on February 26, U.S. Magistrate Judge Gabriel W. Gorenstein denied the motion, although he suggested the plaintiff might still be entitled to an adverse inference instruction after trial. (A magistrate judge only hears evidentiary and preliminary matters and is not the judge who will preside over the trial.)

Although Magistrate Judge Gorenstein denied sanctions, he did find the defendant failed in its legal duty to preserve the checklist. In most spoliation cases, a party's duty to maintain evidence arises only after it is aware of the potential for litigation. But here, Magistrate Judge Gorenstein said, the defendant actually had a duty under federal law to maintain the checklist from the moment it was created. The U.S. Department of Transportation requires all motor carriers to keep any “record of inspection, repairs and maintenance” on file for at least one year. Here, the plaintiff asked for the checklist within the one-year period and the defendant could not offer a reason for its failure to do so. That failure constituted negligence on the party of the defendant, Magistrate Judge Gorenstein said.

Despite this, Magistrate Judge Gorenstein still declined to sanction the defendant because the plaintiff failed to establish the relevance of the missing checklist to his case. The magistrate judge said, “the mere fact that the [checklist] is relevant in the sense that it may be probative of the issues underlying plaintiffs' claims is not sufficient to show that it would have been 'unfavorable' to [the defendant] or that it would have supported plaintiffs' claims.” The trial judge may, however, still decide to issue an unfavorable jury instruction based on the defendant's failure to preserve the checklist.

Holding Defendants Accountable

If you find yourself the plaintiff in a personal injury lawsuit, it is essential you work with experienced counsel who can help identify and fight against a defendant's possible spoliation of evidence. As the case above demonstrates, even if a party is not sanctioned directly, it can still be exposed for failure to follow the law or exercise basic care. If you need the assistance of a New York personal injury attorney, contact our office right away.

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