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What Is Your Duty To Collect And Preserve Evidence In An Injury Claim?

Updated: Sep 21, 2019

In order to maintain fairness in the claims and litigation process, lawyers, clients, parties to lawsuits, and other involved non-parties are prohibited from destroying, modifying or hiding evidence. Not only this mean you cannot intentionally destroy, modify, or hide any and all important piece of evidence, but that you also have to take additional care to preserve documents and other things that may later become evidence should your case be litigated.

Evidence is defined as nearly anything that may help prove or disprove a point relevant to your case. Evidence exists in many forms. It may be a paper letter, an email, text or any other type of electronic message. Evidence can be a paper or digital photograph, or a video on a DVD, tape, or a computer, or any other kind of recording. It may be what is commonly referred to “physical evidence,” such as a damaged car bumper or even the entire car itself. Tis is often relevant in cases of disputed liability or when an insurance company claims the collision was too small to cause an injury. Evidence may be digital or electronic information kept on a cell phone, on a computer, or saved somewhere on the Internet. You have a legal obligation to preserve all such evidence, even if it hurts some aspect of your case.

Clearly, destroying a picture of you climbing Mt. Borah taken the week after you claim you injured your back and can hardly move constitutes destroying evidence. Evidence may also be inadvertently damaged or destroyed in more subtle ways, without you even realizing that is occurred. For example, you need to be careful not only to avoid destroying possible evidence in social media such as Facebook, Pinterest, LinkedIn, et cetera, but you need to avoid situations that will allow an insurance company or defendant to accuse you of trying to hide or destroy evidence. For example: let’s say you put the picture of you climbing Mt. Borah on your Facebook page. You later realize it's there and it would look bad for your case if the other side saw it since it would likely disprove your assertion that you injured your back. Your first reaction will be to take the picture off of Facebook. However, doing this may constitute hiding or destroying evidence.

People also may violate their obligation to collect and preserve evidence when they are working with electronically stored information. As an example, anytime you write a letter on a computer or create a .pdf file, the computer’s software stores hidden electronic information. This hidden information can disclose such things as the date and time you created the file, when you edited or changed the file, what changes were made, who made them, and who you sent copies to. It can be considered hiding or destroying evidence if you wipe the hard drive clean or delete the files. It can even be considered destroying evidence if you throw away your cell phone or otherwise make it impossible to access such information.

Although you may think that "sanitizing" computers or other devices will help your case since it may get rid of bad evidence, it is not allowed, and it may back-fire on you. Those deciding your case (judge or jury) may be instructed that they can use your failure to preserve evidence against you. You may be fined for such “sanitizing.”

Make sure to collect any evidence you can possible think of and go through any steps necessary to preserve it. Make copies of documents and do not delete items on your phone, internet or computer. Most importantly, think hard about your use of social media, when you send a text, publish a photograph, or delete an electronically stored file. It is by far better to simply avoid creating "bad" evidence that an opposing party may misinterpret so that you avoid the problem in the first place.

The team at Storer & Steen are available to discuss any questions you may have about whether you are properly preserving evidence.

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