Preservation of Evidence in an Injury Case
This week, the National Highway Traffic Safety Association announced that the federal government is officially ordering the company that made all those defective air bags (Takata) to keep the air bags (and air bag inflators) that have been removed in all these car recalls and not to toss them. The federal order also requires the company to keep all the data and information that they have gathered during the testing of their air bag products as part of these recalls.
That’s right. There’s a federal goverment order mandating that a potential defendant in cases where people have been hurt or killed from getting rid of physical evidence that might be used later in legal proceedings. (In the past 7 years, 17 million cars containing air bags made by Takata have been recalled because their air bags are known to be dangerously defective.)
Now, why is this needed? Why does NHTSA and the Department of Transportation think that an official order is needed to make sure that this stuff is available later?
Well, the press release answers that question this way:
“This department is focused on protecting the American public from these defective air bags and at getting to the bottom of how they came to be included in millions of vehicles on U.S. roads,” U.S. Transportation Secretary Anthony Foxx said. “This preservation order will help us get the answers we need to accomplish those goals.”
Preservation of Evidence in Injury Cases
There’s another answer to this question, of course. Big corporations that all too often put profits over people often have control over the very evidence that can be used to prove that they have done bad things. It is only through the legal courtroom process of “discovery” that an injury victim can get access to this physical evidence in order to prove their case.
This can be tricky. After all, it’s easy to understand the temptation felt by any wrongdoer to toss the stuff that can prove them liable for bad acts — and for paying large amounts of money in damages.
Accident victims are encouraged by their lawyers to gather as much information as they can, as soon as they can. Videos of the accident site; names and addresses of people who saw what happened; medical records including the EMS documents, etc., are often invaluable in proving an injury claim for settlement or trial.
However, in many instances the needed evidence is in the possession, custody, or control of the potential defendant. Here, the victim needs an aggressive and experienced lawyer to fight for access and review of all this.
Spoliation of Evidence
The first thing that an injury lawyer may do is write a formal letter to the wrongdoer, officially notifying them that discovery will be proceeding in the case and that the defendant should not do anything that might alter, destroy, or otherwise mess with any potential evidence in the case.
This puts the wrongdoer on notice that they have a legal duty to preserve and retain everything in their possession that pertains to the accident.
Additionally, if in the course of discovery there is a belief that the wrongdoer has fallen prey to temptation and somehow messed with potential evidence, then there may be a claim for sanctions or for spoliation of evidence to be made.
The remedies available to the injury victim who is faced with a company that has destroyed or otherwise altered evidence that might have proven their wrongdoing depends upon the state or federal law applicable to their case. Different parts of the country provide different remedies for these situations.
However, the bottom line is that wrongdoers DO mess with evidence to try and protect themselves from being found guilty of doing bad things.
It’s a real problem for anyone trying to build their case for injury damages — and it’s one more reason why having an experienced and tough personal injury lawyer fighting for victims is so important.