November 17, 2017




BDI News & Tips


Don't Let Good Evidence Go Bad


As an agent, we assist you in finding the right coverage for your business, mitigating risk exposures you may have present, and assisting in filing and resolving claims when necessary by reducing unnecessary complexities related to the process.


Part of this involves education regarding preserving evidence, whether physical, electronic or both.  If a company auto is damaged in a collision, you have a duty to preserve evidence related to that accident.  Many newer vehicles utilize 'black box' technology that records speed, brake and steering inputs.  The vehicle saves such data in the event of a collision.  From a liability angle, if a customer trips and falls in your business, and you have a video system, then preservation of evidence extends to saving footage of the day and incident in question.


Whether that evidence is electronic or physical, you have a duty to preserve it, even if it paints your operation in a negative light.  As your agent, it is our duty to alert you to this fact when you contact us about filing a claim.


The failure to preserve evidence may expose your business to an allegation of spoilation of evidence which can have serious legal ramifications, including negative jury instructions, sanctions and, in some states, a separate cause of action may be brought against you.


The availability and utilization of electronic evidence has grown dramatically over the last 20 years.  More and more businesses utilize surveillance cameras in their storefronts, in their warehouses or employee-only areas, parking lots and more.  Many utilize electronic record keeping, extended email storage and a variety of other technologies designed to save information. This has made keeping documentation much more organized, easier to search and share, but it has also added a layer of responsibility on owners and operators to understand how to use their own systems better.


How Important Is It For Business Owners To Preserve Evidence?


As the availability and variety of evidence has increased, so has the need to preserve it.  The courts have reasoned that it is an important requirement that the parties to litigation preserve relevant evidence to prevent one party from subverting the fair administration of justice by destroying evidence.


A recent case involving a Philadelphia-area bar demonstrates the importance of properly preserving evidence.  In this example, the patron of a bar/restaurant claimed that the bar over-served another patron who then assaulted and injured him.  The bar advised the victim that they had surveillance tapes of the incident. When suit was filed months later, the video no longer existed.


The case (St. Clair v 1511 Locust Tavern C.P. Phila No. 140300915), went to trial and the judge instructed the jury they could assume that the video would support the patron's rendition of events because the bar would never destroy evidence that was helpful to them. This is called the "adverse inference" jury charge, and legal journals are littered with similar cases in which the court instructs the jury that lost evidence can be assumed to be harmful to the party who lost it. In essence, the bar not only lost helpful evidence, but they also gave the jury the impression that they were destroying damaging evidence. Ultimately, the jury returned a large verdict in favor of the patron.


When Does A Business Need To Preserve Evidence?


Generally, the duty to preserve evidence arises the moment that litigation is reasonably anticipated. Practically, that means a policyholder should preserve evidence on any occasion where property damage or bodily injury is incurred. If someone is injured at your business, be prepared to save the video and complete an incident report.  Even if you offer assistance to someone who has been injured and they decline you should still preserve evidence.  In some instances, someone is injured more severely than they may realize and their symptoms don't present or become acute until later on or even days later.


In some circumstances a party may send a written request that records be preserved.  This request will act as notice of the business' duty to preserve that evidence.


What Does The Duty To Preserve Encompass?


The duty to preserve evidence includes the duty to locate and safely maintain the evidence.  Electronic data preservation may require additional steps, due to automated deletion features or automated overwriting of data.  Businesses must take active steps to halt the automatic deletion process and preserve the evidence.  Some practical tips:


  • In the event of a loss involving either property damage or bodily injury, save all relevant records. If possible, have duplicate records made and save them offsite, ideally with counsel or a reputable third party. Be sure to also document the chain of custody of the evidence.
  • Preserve the relevant evidence beyond the statute of limitations for the potential claim. If your state has a two-year statute of limitations, save the documentation longer than the two-year statute. In the event the injured party is a minor, the business will be required to maintain the records for a longer period of time; typically, this means preserving them past the minor's reaching the age of majority.
  • Be sure you know how your surveillance system works: how it stores video, if the videos can be overwritten, how quickly something is overwritten, and how the video can be retrieved and saved to an external source.
  • Be sure you understand how your electronic records are kept.  If you're saving copies of invoices, receipts, statements, work schedules, incident reports, etc... are they being stored on your local computer or backed up to a cloud storage service?  Are they ever overwritten as free space dwindles?
  • Develop and implement written protocols for record retention, share them with your managers, and everyone follow those written procedures.


When in doubt whether or not something should be preserved regarding a known incident, err on the side of caution and save it.


Further Exploration


We have written about several of the topics explored here before.  If you'd like to review those articles as well:



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