Defendants are only required to preserve evidence that they “think” is relevant to the case
Unfortunately, the Defense can (and will) legally destroy evidence related to your case. That’s because “document retention policies” don’t require preservation of evidence unless there is a “litigation hold” or “preservation hold” in place.
Simply, if you don’t tell the Defendant that you intend to use evidence in their possession, that evidence can (and will) disappear.
Some evidence can be lost in 48 hours or less
Take for example, a case that happens at a business. There’s video, right? Normally, you would be correct. However, due to the size of the data files involved, most video is only available to preserve for thirty (30) days, or less (some may only save tapes for 48-72 hours).
That means, if you don’t ask for them to preserve the video within 48 hours, it could be lost forever.
Even worse, if you don’t ask them for the video of the entire day, you may only get some carefully edited clips that hurt your case (they will keep that forever).
What can be done?
The most important thing is to notify the Defendant and the insurance carrier that you want them to save evidence by sending a spoliation letter via certified mail, return receipt requested.
Our lawyers can send a letter on your behalf, follow up to ensure that the request is received, and ensure that the letter(s) go to the right people. If you want to know more, please call us at (270) 599 – 0642.
What does the spoliation letter say?
Each situation will be different, but ours say the following, at a minimum:
“This letter is to formally demand the collection and preservation of certain evidence related to an Incident that occurred on or about <<date>> in Bowling Green, Kentucky.
If you fail to properly secure and preserve these important pieces of evidence it may give rise to the legal presumption that the evidence would have been harmful to your side of the case. See: University Medical Center, Inc. v. Beglin, 354 S.W.3d 529 (Ky. 2011); Monsanto Company v. Reed, 950 S.W.2d 811 (Ky. 1997); Binzler v. Marriott International, Inc., 81 F.3d 1148, 1159 (6th Cir. 1996); Nationwide Fire Ins. Co. v. Ford Motor Company, 174 F.3d 801 (6th Cir. 1999); Bank One of Cleveland v. Abbe, 916 F.2d 1067 (6th Cir. 1990).
If you fail to preserve and maintain the evidence listed below and any other relevant evidence related to the Incident, we will seek any sanctions available under the law. The destruction, alteration, or loss of any of the below may constitute a spoliation of evidence under Kentucky Law entitling us to an adverse inference instruction at trial regarding the destruction of such evidence.
Further, you are notified that an official proceeding is pending or may be instituted regarding the above incident, and are instructed not to destroy, mutilate, conceal, or alter the items listed below and any other items, documents, writings or tangible things (including electronic information such as electronic mail, text messages or similar) relating to the Incident. If you destroy, mutilate, conceal, remove or alter any of the physical evidence listed below or any other items, documents, writings or tangible things, you are doing so with the intent to impair its availability in the contemplated proceedings relating to the Incident.
If you choose to destroy, mutilate, conceal or alter the items listed or any other items, documents writings or tangible things related to the above incident, you are committing a Class D Felony (KRS 524.100) and we will not hesitate to present evidence, including this letter, to the appropriate County Attorney or Commonwealth’s Attorney so that criminal proceedings may be commenced. A Class D Felony is punishable by a one (1) to five (5) year prison sentence.
This letter is a formal request that you preserve the following items:
I still don’t understand why they can destroy evidence
That’s understandable. The reason is simple – if you don’t tell them you want it, they will only keep what they think helps their case. Most people (companies included) only save things that are helpful to their side of the case.
A lawyer’s job is to ensure that all evidence that the Defendant has is preserved to build your case.
Give us a call today – (270) 599 – 0642.