When someone is hurt in an accident, the very first priority should be to ensure the victim has sought and received appropriate medical care. After the accident has happened, there is potentially a large amount of information that could be critical and relevant to the incident. This information is generally called “evidence” and can be generated and recorded in different ways. This may include photos of the accident site, video surveillance of what happened in real-time, the names and contact information of eye witnesses, and any specific conditions that may have existed (weather, vehicles, the parties themselves). All of this information plays a significant role in a lawsuit. If one side in a lawsuit purposely or negligently loses or destroys evidence, this is referred to as “spoliation of evidence.” The consequences of doing so can be dire.
Intentional versus Negligent Spoliation
Like many things in life, spoliation of evidence falls under a spectrum. On one end is the deliberate destruction of evidence that may help the other side or hurt your own. On the other end is the negligent destruction of evidence.Notably, when a party has willfully committed spoliation of evidence, under Nevada law there is a rebuttable presumption that the destroyed evidence would have been hurtful to the party that destroyed it. Not surprisingly, courts have the leeway to hold this negligence against the party who destroyed the evidence but absent proof that the act was intentional, the court may be more lenient in its decision.
Evidence That Should be Preserved
Both the plaintiff and defendant to a lawsuit have a legal duty to preserve evidence – in other words, not cause spoliation of evidence. In fact, each side has a legal obligation to take steps to make sure that evidence is neither lost or destroyed before the evidence can be analyzed and incorporated into the lawsuit. Any evidence that could be used in the lawsuit relating to the dispute in question could be at risk of spoliation. Examples of evidence that should preserved in a Nevada accident case could include:
- Cell phones (including its data);
- Photos or video taken after the accident;
- Property that was damaged; and/or
- Notes taken after the accident.
Under Nevada law, when a party spoils evidence, sanctions should be imposed and the other (non-spoiling) party may be entitled to recover attorneys fees. Nevada’s highest court established an eight part test to determine if sanctions are appropriate. They include:
- The degree of willfulness of the spoiling party;
- The degree to which the non-spoiling party would be prejudiced by a lesser sanction;
- The severity of the sanction in relation to the severity of the conduct;
- Whether the spoiled evidence was permanently lost;
- The fairness and feasibility of imposing lesser sanctions;
- Public policy favoring a decision on the merits;
- Whether sanctions unfairly penalize a party for his or her attorneys’ misconduct; and
- The need to deter the parties and future litigations from similar behavior.
In addition to sanctions, when evidence is destroyed, the jury can infer the evidence was unfavorable to the spoiling party.
In short, destroying or losing evidence – by accident, but particularly on purpose – may not be illegal but is definitely not a good idea. For more answers to your legal questions, contact Matt Pfau Law Group.