In California, you should keep and maintain all evidence that is in your possession, and that may be relevant to a personal injury case. You should also take necessary steps to ensure that the potential defendants preserve evidence in their possession. Statements from witnesses can also be taken and preserved. The consequences for spoliation of evidence are significant.
What steps should I take to preserve evidence in my possession?
After a personal injury situation, you are in a position to gather and retain some key pieces of evidence. These can include:
- photos of your injuries,
- pictures of the site of a car accident,
- contact information of witnesses,
- the clothes that you were wearing after a slip and fall incident,
- the defective product that hurt you, and
- physical copies of your medical bills.
If you can, use your cell phone to gather as much information as you can. It can help you prove your personal injury claim.
In certain cases, like after a car crash, you should also ensure that a police report is created from the incident. This will produce an official rendition of what happened. These are especially important if you cannot gather evidence on your own after the incident.
Even if you never file a lawsuit, the lawyers at our law firm have found that insurance claims backed with documentation tend to fare better than those not.
Once you have gathered this information, you need to keep it in a safe place. If you accidentally destroy it, throw it away, or delete the computer files, it can be disastrous for your claim.
What about evidence held by parties that are not in the lawsuit?
Third parties to the claim may have valuable evidence that you can use. However, you will have to be proactive about getting it.
Third parties to your claim include:
- eyewitnesses,
- people who were nearby the scene of the accident,
- stores in the vicinity, and
- anyone else who may have evidence, but who you will not sue.
Some common examples of evidence that these third parties can provide include:
- witness statements, either in the form of an affidavit or a deposition,
- surveillance footage, and
- property damage assessments, such as a mechanic’s statement about the state of your vehicle after a crash.
Because this information is not in your possession, it can be more difficult to obtain. You often have to ask for it.
Our personal injury attorneys have found that asking for this information very soon is crucial. Witnesses forget what they saw or their contact information changes, making them impossible to reach. Surveillance footage is often routinely deleted after a set amount of time.
What can I do to preserve evidence in the defendant’s possession?
In many California personal injury cases, the defendant will have important evidence in their possession. While there are penalties for altering or destroying it, they may choose to do so, anyway.
One way to ensure this does not happen is for your personal injury lawyer to send potential defendants an anti-spoliation letter. This letter informs the recipient that they have potentially important evidence, and warns them that destroying it can lead to serious consequences. Also known as an evidence preservation letter, it should include:
- a notice of potential future litigation,
- a summary of the facts relevant to the case,
- a formal request that the recipient preserve evidence that may be relevant to the case,
- how long the evidence should be preserved, and
- a request for the contact information of the people holding that evidence.
This letter should be sent to the defendant and their insurance company. Send it in a way that lets you know that they have received it. You should keep a copy for your own records.
The recipient should put a litigation hold in place. This suspends their routine document retention and destruction policies. This is especially important for electronically stored information, or ESI. However, it can also preserve the following types of discoverable information:
- relevant documents, and
- physical evidence.
This ensures that they are still available if litigation gets far enough that there are discovery requests.
What is spoliation of evidence in a California personal injury case?
In a personal injury case, spoliation of evidence is when someone deliberately or negligently destroys or alters evidence that is relevant to your case.
Note that it can still be spoliation of evidence if its destruction was a mistake.
In California, the obligation to preserve evidence is generally triggered when the holder of the evidence becomes aware of the need to preserve it.[1] This is why it is extremely important to send an anti-spoliation letter.
If the person who negligently or intentionally destroyed evidence is not a party to your lawsuit, you may have a cause of action against them under tort law.[2]
If the opposing party negligently or intentionally destroys evidence, or if a non-party intentionally destroys it, you can ask that the trial court:
- issue jury instructions to infer from the destruction of evidence that it was proof of liability,
- issue a court order to preserve all remaining evidentiary information, or
- impose sanctions against the offending party.[3]
Spoliation of evidence can even be a crime. California Penal Code 135 PC makes it a misdemeanor offense to:
- willfully hide or destroy evidence, and
- do so knowing that it is relevant to a trial or other legal proceeding.
Convictions carry up to:
- 6 months in county jail, and/or
- $1,000 in fines.
What evidence is relevant to my case?
It depends on the personal injury case.
For car accidents, relevant evidence may be:
- photos of the scene of the accident, and
- the damaged vehicles.
For slip and fall cases, it may be:
- the particular clothes you were wearing, and
- the store’s surveillance footage.
For dog bites, it could be:
- a neighbor’s videotape from a doorbell camera,
- eyewitness accounts, and
- pictures of your injuries.
Legal References:
[1] See generally, Bandman & Du Nesme, Recent Developments in the Area of Spoliation of Evidence, in Civil Practice and Litigation in Federal and State Courts 463 (ALI-ABA July 1997). See also Apple Inc. v. Samsung Electronics Co., Ltd., 881 F.Supp.2d 1132 (N.D. Cal. 2012).
[2] See Johnson v. United Services Automobile Association, 57 Cal.App.4th 626 (1998).
[3] Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1 (1998). See also California Code of Civil Procedure 2023.030 CCP.
