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Before you make the decision to start a lawsuit, you should be thinking about preserving evidence.  When a lawsuit is anticipated or pending, potential parties should be aware from the outset that they may have an obligation to preserve evidence if they intend to use it against another party. The failure to preserve evidence may result in an inability to use that evidence under the doctrine known as spoliation.

Spoliation is the destruction or altering of evidence by a party or their agent (ie: “spoiled” evidence).  Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn. Ct. App. 1998). While the term spoliation may be foreign to many, the policy behind the doctrine should not be. If you are going to present a claim against another, you cannot destroy your supporting evidence and then attempt to use it against another party.

A common context in which spoliation arises is construction litigation. If your builder negligently or defectively constructed a load bearing wall for your home and you want to bring a claim against that party, the failure to preserve the evidence (wall) could have negative and potentially crippling consequences to your case. Therefore, it is imperative that you ensure your actions will not run afoul with the doctrine of spoliation if you intend to have anything done to the evidence.

There are certain steps you should take to avoid spoliation sanctions in court. To be safe, before a claimant destroys or alters evidence, they should provide the opposing party notice and an opportunity to inspect the evidence. If a party anticipates they will need to intentionally destroy evidence and they have a legitimate need for the destruction, they should schedule a “meeting or a [send] letter indicating the time and nature of any action likely to lead to destruction of the evidence, and offering a full and fair opportunity to inspect….” Miller v. Lankow, 801 N.W.2d 120, 128-29 (Minn. 2011). Failure to do so may result in the exclusion of certain evidence or the court giving a negative-inference jury instruction.

As soon as you believe you have a claim against another party, start thinking about your evidence preservation obligations. Often times, the evidence may create an obstacle or hazard for the custodial party with the evidence in their possession.  If you are unsure as to what steps should to be taken to avoid spoliation sanctions, it is important that you contact an attorney early to ensure you do not hamper your ability to use evidence in the future.

This post was created by Christopher W. Boline, a commercial and business litigator at Dudley and Smith, P.A. If you have questions about spoliation or other issues involving corporate and business litigation, please contact Mr. Boline at 651-291-1717 or by email at Dudley and Smith, P.A. is a full service law firm with offices in St. Paul, Bloomington, Burnsville, Chanhassen, White Bear Lake, and Woodbury.

The law is continually evolving and Dudley and Smith, P.A.’s blog posts should not be relied upon as legal advice, nor construed as a form of attorney-client relationship. Postings are for informational purposes and are not solicitations, legal advice, or tax advice. A viewer of Dudley and Smith, P.A.’s blog should not rely upon any information in the blog without seeking legal counsel.