What happens when critical evidence is lost or destroyed in a personal injury case, and how to protect your claim from the start.
What Is Spoliation and Why Does It Matter?
Spoliation refers to the loss, destruction, or material alteration of evidence that is relevant to a lawsuit. In New York personal injury cases, spoliation can have serious consequences for your claim, regardless of whether the evidence was destroyed intentionally or accidentally.
Evidence can take many forms in an injury case: surveillance video footage from the accident scene, photographs of a hazardous condition, medical records, the physical object that caused your injury, or even data from a vehicle’s black box. When this evidence disappears before it can be examined or presented in court, it may significantly weaken your ability to prove what happened and who was responsible.
New York courts take spoliation seriously because the civil justice system depends on each party’s ability to present relevant evidence. When evidence is destroyed, it can prevent a fair determination of the facts. Understanding spoliation is important because it affects both what you should do to preserve evidence after an accident and what remedies may be available if the other party destroys evidence relevant to your case.
Your Responsibility to Preserve Evidence
Once you are injured and contemplate bringing a legal claim, you have a duty to preserve relevant evidence within your control. This duty begins as soon as you reasonably anticipate litigation, which in many injury cases means shortly after the incident occurs.
Practical steps to preserve evidence include:
- Take photographs and videos of the accident scene, your injuries, property damage, and any conditions that contributed to the incident as soon as safely possible
- Preserve physical items such as torn or bloodied clothing, defective products, or damaged equipment in the condition they were in at the time of the incident
- Keep all medical records and bills related to your treatment, and maintain a log of symptoms and how your injury affects daily activities
- Do not repair or dispose of damaged property without consulting an attorney first, as the other side may have a right to inspect it
- Preserve electronic evidence such as text messages, emails, social media posts, and phone records that may be relevant to your claim
Failing to preserve evidence in your possession can result in sanctions against you, including adverse inference instructions where the jury is told they may assume the destroyed evidence would have been unfavorable to your case. In extreme situations, a court might even dismiss your claim entirely, though this is rare and typically reserved for intentional destruction of critical evidence.
When the Other Party Destroys Evidence
More commonly in personal injury cases, the concern is that the defendant or another party has destroyed or failed to preserve evidence. For example, a property owner might record over surveillance footage, a hospital might lose medical records, or a trucking company might fail to preserve data from a vehicle’s electronic logging device.
In New York, if the opposing party had a duty to preserve evidence and breached that duty, resulting in prejudice to your case, you may be entitled to remedies. These can include an adverse inference charge, where the jury is instructed that they may presume the destroyed evidence would have been favorable to your case and unfavorable to the party who destroyed it. In serious cases involving intentional destruction, courts may impose monetary sanctions or even strike pleadings.
To obtain relief for spoliation, you generally must show that the party had control over the evidence and a duty to preserve it, that the evidence was destroyed with a culpable state of mind (ranging from negligence to intentionality), and that the destroyed evidence was relevant to your claims. This is why sending a preservation letter (sometimes called a spoliation letter) early in the case is important. This letter formally notifies potential defendants of your claim and their obligation to preserve all relevant evidence, establishing that they were on notice of their duty.
The key to protecting your case from spoliation issues is acting quickly. Evidence can disappear rapidly after an incident: video footage may be automatically deleted after a certain period, witnesses’ memories fade, and physical conditions change. Consulting with an attorney promptly after an injury helps ensure that critical evidence is identified and preserved before it is lost.
Frequently asked questions
How long does a business have to keep surveillance video footage in New York?
How long does a business have to keep surveillance video footage in New York?
Can I be penalized for posting about my injury on social media?
Can I be penalized for posting about my injury on social media?
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Injured in New York? Alan Ripka & Associates offers a free, confidential case review in English, Spanish, or Russian. Call 212-557-4777.
Attorney Advertising. This article is general information, not legal advice, and does not create an attorney-client relationship. Every case is different; prior results do not guarantee a similar outcome. For advice about your situation, contact Alan Ripka & Associates, LLP at 212-557-4777 for a free consultation.
