Nov. 19, 2014 – When do you have an obligation to preserve evidence? The court has clearly said that when there is the distinct possibility of litigation, a lawyer has a duty to preserve evidence. In this video, John Walsh of Axley Brynelson discusses the growing instance of spoliation and outlines the lawyer’s role to preserve evidence.

In recent years, Walsh has seen an increase in the number of cases where evidence is destroyed or “disappears.”

“Sometimes people are just not aware that there is an obligation to preserve records,” said Walsh. “Sometimes it is in good faith. Sometimes it is intentional destruction. But when it happens, the courts have to figure out how to deal with it and what the appropriate sanction is.”

The Lawyer’s Role

When it becomes clear there is obligation to preserve evidence, the lawyer must advise the client immediately of their responsibility to preserve the evidence. If the lawyer has retained an expert to evaluate the product or appliance, the lawyer must advise the expert, who also has a duty to preserve the evidence, that they cannot engage in any destructive testing.

“Sometimes lawyers may take control of the product to ensure that it is preserved,” said Walsh.

Typically, when a client calls and asks what they should do about an on-the-job injury, an auto accident, or the like, the lawyer advises them to report it to their insurance company. “But at that time, the lawyer also has a duty to explain to the client that any evidence involved in the situation must be preserved because there is a potential for litigation,” said Walsh. “The lawyer should also advise the client how to preserve the evidence.”

Business clients, hospitals, larger institutions, and the insurance industry usually have a document destruction policy – at a certain point in time they routinely destroy. “But they can’t routinely destroy if there is a possibility of litigation, and the lawyer must alert the proper people at the company that they cannot destroy evidence for this particular product,” said Walsh.

Walsh spoke at the 2014 State Bar of Wisconsin Annual Meeting & Conference. Based on the last few years, he said, “I think spoliation is going to become more of an issue. Sometimes it’s because people just aren’t aware of the obligations to preserve evidence, and it’s a mistake in good faith. Other times it is intentional destruction. There are a number of cases right now, including in Wisconsin, where intentional destruction has occurred and the courts have to deal with it and figure out what the appropriate sanction is.