TT Talk - Evidence issues in the United States

Whenever an incident occurs, it is right and reasonable for the individual or organisation concerned to consider properly the facts and evidence related to what has happened. It may not be that litigation is immediately contemplated, but that may well occur in many situations.

It may not always be apparent whether an incident will lead to litigation, but the general advice would be to err on the side of caution and ensure that steps are taken to collect and retain appropriate evidence. Prompt collection of evidence is important because in the days and weeks following an incident, conditions change, memories fade and records may be lost or misplaced.

"Err on the side of caution and ensure that steps are taken to collect and retain appropriate evidence"

Failure to preserve records (whether paper or electronic) or physical 'assets' (such as damaged equipment) will almost certainly have consequences. In the United States such failure is called 'spoliation of evidence', which is defined as the intentional or reckless hiding, altering, fabricating or destroying of evidence relevant to a legal proceeding. The penalties for spoliation of evidence include sanctions, fines, penalties, adverse jury verdict, negative publicity and damaged reputation.

While the legal duty to preserve evidence may arise when litigation is reasonably anticipated, TT Club recommends that every incident is treated as if litigation may follow and preserve evidence accordingly. Clearly, litigation may be expected following and injury or death, as well as property damage of any magnitude. Where a lawsuit is possible, be sure to notify TT Club (or your relevant insurer) so that appropriate steps can be taken, including appointing a lawyer.

Details relating to time, date and location of an incident, together with the parties involved (names, addresses and phone numbers), should be collated immediately. Where appointed, the lawyer will coordinate interviewing witnesses, securing statements, and the collection of documents needed. It is important also to identify any other sources of information, such as security cameras, vehicle recorders or mobile phones. If the incident is captured on a security camera, copies should be made immediately and files secured to prevent the file being deleted or overwritten.

Any equipment (such as truck or chassis) involved in an incident should immediately be placed on hold and not used or released until an inspection has taken place and any authorities have completed their review/inspection. In many situations, it is important to allow other parties opportunity to carry out inspection, which may mean retaining and storing items for a prolonged time - perhaps even throughout the ensuing litigation.

It is important during the collection of evidence to interact with authorities, first responders, tow truck drivers and other witnesses. Once the immediate response is completed, evidence preservation throughout the organisation is necessary.

"In the United States, the way to demonstrate good faith is through a litigation hold"

In the United States, the way to demonstrate good faith is through a litigation hold. This may be implemented on any party's volition or, in the case of a serious injury or loss of life, be sought by a claimant's lawyer. In the latter case, TT Club advises the recipient to comply with a litigation hold letter; failure to do so may result in sanctions, fines or penalties or an adverse jury verdict.

A litigation hold is the process of avoiding the inadvertent destruction of relevant evidence. Notice that a litigation hold was received should be sent in writing to managers of each division or group within the company and anyone involved with the events at issue. The issuing manager should document all persons within the organization who received the litigation hold and oversee the compliance with the litigation hold and monitor efforts to retain relevant evidence.

The memo should inform all employees of the need to comply and should involve both legal and information systems personnel. Some of the items which should be identified and preserved include e mails, driving records, surveillance footage, photographs, contracts and commercial documents. It is also important to notify any outside parties who are in possession of your information/documents and request they document the steps taken to preserve evidence.

Once the litigation hold memo is sent, it should be followed up on a regular basis and remain in effect until the statute of limitations has expired as to all anticipated claims. If litigation has commenced, the litigation hold should last until final conclusion of the suit.

We hope that you have found the above interesting. If you would like further information, or have any comments, please email us, or take this opportunity to forward to any colleagues who you may feel would be interested.

We look forward to hearing from you.

Peregrine Storrs-Fox

Risk Management Director, TT Club

Staff Author

TT Club