Spoliation

This guide is for the welding community of experts, adjusters, investigators and litigants to address evidence spoliation issues in civil proceedings. Professionals who intend to contribute to the honesty, impartiality, fairness and equity of the legal system should be dedicated to the protection of all evidence pertaining to determining the truth during discovery and court proceedings. Professionals in these matters should perform under a standard of behavior that requires adherence...
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This guide is for the welding community of experts, adjusters, investigators and litigants to address evidence spoliation issues in civil proceedings. Professionals who intend to contribute to the honesty, impartiality, fairness and equity of the legal system should be dedicated to the protection of all evidence pertaining to determining the truth during discovery and court proceedings. Professionals in these matters should perform under a standard of behavior that requires adherence to the highest principles of ethical conduct. Although evidence spoliation is a concern to the court, spoliation may also involve attention to routine business practices, including ownership, storage, examination and destruction. It is important to have consistent evidence retention policies for property and records with jurisprudence issues in mind. Eliminate risk and ensure compliance with legal expectations. In the 1600’s, an English court confronted one of the first recorded instances of evidence spoliation in Armory v. Delamirie. In that case, a chimney sweep found a jeweled ring and took it to a jeweler for appraisal. When the jeweler returned the ring without the stone, the chimney sweep brought an action to recover the gem. Since the jeweler had retained the stone, the Judge instructed the jury to “presume the strongest case against the jeweler and make the value of the best jewels the measure of damages”. The ruling of the court became the now familiar axiom that a party should be held accountable for improperly withholding or discarding evidence: “Omnia praesumuntur contra spoliatorem” which means all things are presumed against a wrong doer. Since the Armory case, courts and litigants continue to wrestle with evidence spoliation in the context of truth and justice in civil proceedings. Newspaper headlines report that evidence tampering is considered a game, whose rules are easily broken. One study concluded that almost half of all litigators believed that spoliation was a frequent occurrence. When litigation is pending, threatened or reasonably foreseeable, spoliation of all items that may be evidence in a case becomes an area of legal interest to the court. When placed on notice of possible litigation, it is necessary to notify opposing interests to save all evidence. Anyone handling what may be considered evidence should preserve it for the court’s purposes.