The Importance of "Evidence Preservation": Part 8 - Dealing with the "Litigation Hold"

Robert Franklin posted on 2010/10/05 |

Preserving evidence in the event of an accident is crucial to minimizing one's liability exposure. This is Part 8 in a nine part series of related discussions. The full list of the parts to this series appears following this installment.

“Litigation Hold” is a commonly used term of art referring to the duty to preserve evidence when one has knowledge, actual or constructive, that such evidence is likely to be relevant to resulting litigation. The primary question is when such a duty is triggered. Once it is triggered, the issue then becomes the scope and timing of what action one should take, and what evidence one should preserve.

The most obvious form of notice is an actual one. It is not uncommon to receive a “Litigation Hold” letter from an attorney representing a potentially adverse party. It is no secret that a great percentage of people become represented by an attorney shortly after being involved in an accident. It is a standard practice of such lawyers to send a “Litigation Hold” letter to the adverse corporate party, in the hopes of either preserving relevant evidence or setting up the other entity for a “spoliation” claim if evidence is not preserved.

“Litigation Hold” letters from plaintiffs' attorneys tend to be extremely overreaching. They make broad demands with no real basis, such as retaining logs for all of one's drivers for six months, or even a year, prior to the date of accident, etc. The plaintiffs' bar routinely shares forms for such letters, and it is not unusual to see the same language time and again.

Even in the absence of actual notice by a “Litigation Hold” letter, one may have constructive notice of the duty to preserve evidence. The standard, of course, is not clear cut. Some incident involving only minor property damage is likely to trigger little, if any, duty. Any incident resulting in medical treatment away from the scene, however, is relatively strong evidence of constructive notice of the need to preserve evidence. Obviously, the more serious the injuries appear to be, the more likely it is for a duty to be found.

The next question then becomes what to do in response to such notice. A motor carrier or private fleet operator should promptly discuss any such situation with its applicable insurer. Too many times the motor carrier and insurer each conduct independent investigations of an accident, which result in duplicate efforts and costs, and, worse yet, may produce inconsistent results.

A “Litigation Hold” letter from an attorney will almost always be directed to the motor carrier, as opposing counsel typically does not yet know the identity of the applicable insurer. One should, of course, promptly forward such correspondence to the insurer. That not only facilitates a timely and coordinated response, but the failure to do so could bring coverage into question by arguably prejudicing the insurer's rights and failing to cooperate.

Most carriers, and their insurers, will have counsel involved in the investigation of a serious accident, “in anticipation of litigation”, shortly, if not immediately, after it occurs. That helps to ensure that all steps are taken to preserve evidence and prepare for resulting litigation. Moreover, it likely protects the results of the investigation as privileged, when they would not otherwise be in the absence of involvement of outside counsel.

It is a sound practice to have defense counsel contact the author of the “Litigation Hold” letter, or otherwise known attorney for a potentially adverse party, in an attempt to negotiate the scope of what is to be preserved. Counsel can often reach agreement on what evidence is to be preserved (e.g. two weeks of logs for the subject driver only), and that agreement can then be memorialized in a follow-up letter, which should avoid any subsequent spoliation claim.

If an adverse attorney maintains an unreasonable demand in terms of the scope of evidence to be preserved, defense counsel can follow-up the related conversation with a letter confirming what was offered, and the failure of opposing counsel to articulate a legitimate basis for demanding more. That type of action, and documentation, can present a solid defense to any subsequent spoliation claim.

In a situation of constructive notice, the standard again becomes unclear. Certainly basic information and documentation in conjunction with the accident and driver should be preserved. That would typically include EOBR data from the subject power unit, physical evidence from the scene, photographs, logs, the driver's DQ file, PM records from the subject equipment, documents regarding the applicable lading, etc. It is better to err on the side of being too inclusive. Even evidence with some “problem” (e.g. a log with technical violation) is likely to ultimately present less difficulty than being viewed as having “destroyed” relevant, and potentially significant, evidence.

The "Preservation of Evidence" Series

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