Yes. A legal duty to preserve evidence can exist in a personal injury claim, and that duty may begin before a lawsuit is actually filed. Generally, once a person or organization knows – or reasonably should know – that litigation is likely, potentially relevant evidence should be protected from destruction, alteration, deletion, or loss. Courts have repeatedly recognized that the preservation obligation can arise when litigation is reasonably foreseeable, rather than only after a formal complaint has been filed.
Importantly, this responsibility is not limited to the person or company accused of causing an injury. An injured claimant may also have a duty to preserve evidence relevant to the case.
Failing to do so can create a separate issue known as spoliation of evidence, potentially affecting what evidence can be presented, what arguments can be made, and, in serious circumstances, the outcome of the case itself.
When Does the Duty to Preserve Evidence Begin?
The preservation duty most clearly exists once a lawsuit has been filed. However, waiting until litigation officially begins can be too late.
Courts generally recognize that the obligation may arise earlier, when litigation becomes reasonably foreseeable or reasonably anticipated. Federal Rule of Civil Procedure 37, for example, addresses electronically stored information that should have been preserved in the anticipation or conduct of litigation. The advisory notes explain that many courts recognize a common-law preservation obligation once litigation is reasonably foreseeable.
That does not mean every accident automatically creates an unlimited duty to preserve everything that could conceivably become relevant. Courts may look at the circumstances to determine whether a reasonable person or business should have expected litigation. The mere possibility that someone might eventually file a lawsuit may not be enough.
Circumstances suggesting that litigation may reasonably be anticipated could include:
- A serious accident resulting in significant injuries
- A fatal accident
- A formal insurance claim or demand
- Notice that an injured person has retained an attorney
- Receipt of an evidence-preservation letter
- An internal investigation following an accident
- An incident report documenting a substantial injury
- Communications indicating that the parties dispute responsibility
- A request to inspect a vehicle, product, property, or other physical evidence
Because the analysis is highly fact-specific, the exact point at which a preservation duty arises can vary from case to case.
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Does the Duty Apply to Both Sides of a Personal Injury Claim?
Yes. Evidence preservation is not solely a defendant’s responsibility.
A business, property owner, trucking company, manufacturer, driver, employer, or other potential defendant may be required to preserve relevant information once litigation is reasonably anticipated. But an injured claimant may have preservation obligations as well.
Consider a product liability case. If someone claims that a defective ladder caused a serious fall, throwing the ladder away could prevent the manufacturer from examining the alleged defect. Similarly, repairing or disposing of a badly damaged vehicle before the opposing party has an opportunity to inspect it could eliminate evidence about impact forces, mechanical failures, tires, safety systems, or other disputed issues.
A federal appellate court has even recognized that when a prospective litigant does not own or control important physical evidence, there may still be circumstances in which the person should provide the opposing party notice and an opportunity to inspect it before the evidence disappears.
The basic principle is fairness: neither side should improperly deprive the other of material evidence needed to evaluate, prove, or defend the claim.
What Types of Evidence May Need to Be Preserved?
The evidence that matters will depend on how the accident occurred and what issues are disputed.
Physical Evidence
Potentially important physical evidence may include:
- Damaged vehicles
- Tires and vehicle components
- Defective consumer products
- Machinery or equipment
- Helmets and child safety seats
- Torn or damaged clothing
- Broken stairs, railings, or other components
- Packaging, warnings, labels, or instruction manuals
Original physical evidence can sometimes provide information that photographs alone cannot capture. For example, an accident reconstruction expert may need to inspect vehicle damage, while an engineer in a product liability case may need to examine the exact product alleged to have failed.
Photographs and Video
Relevant recordings may include:
- Cellphone photos and videos
- Surveillance footage
- Dashcam recordings
- Doorbell-camera footage
- Body-camera recordings
- Commercial vehicle camera footage
- Photographs of injuries
- Images of property damage or accident-scene conditions
Video evidence can be especially time-sensitive because some security systems routinely overwrite older recordings. Once litigation is reasonably foreseeable, allowing potentially relevant footage to disappear through an automatic deletion process can raise preservation concerns.
Electronic Evidence
Modern personal injury cases may also involve substantial electronically stored information, such as:
- Text messages
- Emails
- Digital photographs
- Social media content
- GPS information
- Electronic vehicle data
- Electronic logging-device records
- Dispatch communications
- Computer files
- Metadata
- Cloud-stored documents
Federal Rule 37(e) specifically addresses electronically stored information that is lost after it should have been preserved for anticipated or ongoing litigation. The rule focuses on whether reasonable preservation steps were taken and whether the information can be restored or replaced.
Business and Accident Records
Depending on the claim, relevant records might include:
- Incident reports
- Inspection records
- Maintenance and repair logs
- Employee schedules
- Training materials
- Driver qualification records
- Hours-of-service records
- Safety policies
- Prior complaints
- Employment records
- Vehicle maintenance documentation
These materials can be particularly important in premises liability, commercial vehicle, workplace, and negligent hiring or supervision cases.
What Is Spoliation of Evidence?
Spoliation generally refers to destroying, significantly altering, concealing, losing, or failing to preserve evidence relevant to pending or reasonably foreseeable litigation.
Spoliation does not necessarily require someone to deliberately shred documents or delete a damaging video.
It can potentially involve actions such as:
- Allowing surveillance footage to be automatically overwritten
- Deleting texts or emails
- Repairing a vehicle before it can be inspected
- Throwing away an allegedly defective product
- Destroying records under a routine document-retention schedule
- Wiping or replacing a cellphone containing relevant data
- Altering photographs or electronic files
- Making physical evidence unavailable for inspection
However, the fact that evidence was lost does not automatically mean sanctionable spoliation occurred. Courts may consider when the evidence disappeared, whether a preservation duty had already arisen, whether reasonable steps were taken, why the evidence was lost, how important it was, whether another source can replace it, and whether the opposing party was prejudiced.
What Can Happen If Evidence Is Destroyed?
The consequences depend heavily on the jurisdiction, the type of evidence involved, the importance of the lost material, the circumstances surrounding its destruction, and the responsible party’s state of mind.
Possible court responses may include:
- Additional discovery
- Monetary sanctions
- Restrictions on certain evidence
- Restrictions on claims or defenses
- Allowing evidence concerning the loss to be presented at trial
- Jury instructions concerning missing evidence
- In especially serious circumstances, dismissal of claims or entry of judgment against a party
The rules can be particularly specific when electronically stored information is involved. Under Federal Rule of Civil Procedure 37(e), if information that should have been preserved is lost because reasonable steps were not taken, cannot be restored or replaced, and the loss prejudices another party, a federal court may impose measures necessary to cure that prejudice. More severe remedies – such as presuming that the missing information was unfavorable, giving certain adverse-inference instructions, dismissing an action, or entering default judgment – require a finding that the party acted with the intent to deprive another party of the information’s use in the litigation.
State rules and rules governing physical evidence can differ, which is why the consequences of spoliation must be evaluated under the law applicable to the particular case.
What Is an Evidence-Preservation Letter?
An evidence-preservation letter, sometimes called a spoliation letter or litigation-hold notice, is a written communication identifying evidence that may be relevant to anticipated litigation and requesting that the recipient protect it.
For example, after a commercial truck accident, a preservation notice might identify:
- Dashcam footage
- Electronic logging-device data
- GPS records
- Driver logs
- Dispatch communications
- Maintenance records
- Inspection reports
- Engine-control-module data
- Driver qualification records
After a slip and fall, a letter might request surveillance footage, incident reports, employee schedules, cleaning logs, inspection records, photographs, and communications concerning the dangerous condition.
Preservation notices can be particularly important when evidence is subject to short retention periods or automatic deletion. They can also help establish that the recipient had notice that particular evidence might be relevant to a future claim.
A preservation letter does not itself establish negligence or prove that the recipient is responsible for the accident. Rather, its purpose is to identify potentially relevant evidence so that it is not lost before the parties have an opportunity to obtain or inspect it.
What Should an Injured Person Do to Preserve Evidence?
People pursuing personal injury claims should be cautious about modifying or disposing of anything connected to the accident.
Depending on the circumstances, reasonable preservation steps may include:
- Keeping original photographs and videos
- Saving relevant emails, text messages, and electronic files
- Avoiding deletion of potentially relevant social media content
- Keeping damaged clothing, equipment, or products
- Preserving receipts, packaging, manuals, and warranties
- Avoiding repairs or disposal of important physical evidence until appropriate inspections can occur
- Keeping copies of accident-related documents
- Identifying potential sources of surveillance or dashcam footage promptly
Evidence does not necessarily need to be preserved forever, nor does every potentially related item need to be retained. The federal rules recognize a reasonableness standard rather than demanding perfect preservation, and considerations such as relevance, proportionality, accessibility, and available resources may matter.
The difficulty is determining what evidence matters and how long it must remain available. That decision can have significant consequences, particularly when dealing with a vehicle, defective product, electronic device, or data that may disappear automatically.
Why Acting Quickly Matters
Some of the most useful evidence in an injury case may also be the easiest to lose.
Surveillance systems can overwrite recordings. Vehicles can be repaired or salvaged. Businesses can delete records according to routine retention policies. Witnesses’ memories can fade. Electronic systems can replace older data with newer information.
For that reason, evidence preservation often becomes an important issue well before anyone enters a courtroom.
Once a serious accident creates a reasonable expectation that a personal injury lawsuit may follow, both sides should consider what potentially relevant evidence exists, who controls it, and what reasonable steps are necessary to prevent its loss.
The Bottom Line: Personal Injury Claims Carry Evidence-Preservation Responsibilities
There is a duty to preserve relevant evidence in personal injury litigation, and it does not necessarily begin on the day a lawsuit is filed. The obligation may arise earlier when litigation is reasonably anticipated or foreseeable.
The duty can apply to defendants and injured claimants alike. Destroying a damaged vehicle, discarding an allegedly defective product, deleting electronic communications, or allowing important video to disappear can make it more difficult for the other side to fairly evaluate the case and may lead to spoliation disputes or court-imposed consequences.
Because preservation requirements and spoliation remedies vary by jurisdiction and circumstance, anyone involved in a significant personal injury claim should consider obtaining legal guidance before repairing, deleting, modifying, or disposing of potentially important evidence.
This article provides general information about evidence preservation in personal injury claims and is not legal advice. Preservation duties and spoliation rules vary by jurisdiction and by the facts of each case.
