Don’t Let Your Adversary Spoil Your Case.
Don’t let your opponent spoil your case by destroying or obfuscating evidence relevant to your case through spoliation of evidence. “First party” spoliation refers to spoliation of evidence by a party to the principal litigation, and “third party” spoliation refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Indiana law “does not recognize an independent cause of action for intentional or negligent ‘first party’ spoliation of evidence.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006). If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000). Other potential sanctions for spoliation include further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189 (Ind. 2011) (quotations omitted).
However, case law requires that you prove that the act is nearly intentional. In order to satisfy this high standard you need to send out preservation letters early and distribute them widely in order to create a sufficient paper record to establish circumstantial evidence of intent.
Make sure the preservation letter reaches the opposing party, their insurer and attorney as early as possible. The relevant evidence to be preserved needs to be specially identified so there is no claim of ambiguity, mistake or accident. Early groundwork is needed to preserve evidence and make sure there are real consequences for its destruction by those who possess and control it.