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Thu, 20 Feb 2014
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In the world of CSI jurors have high expectations regarding forensic evidence. As a result, it is critical that evidence is properly identified, preserved and protected. The purpose of this paper is to review the legal obligations regarding preservation of evidence; the proper way of giving access to evidence; and practical pointers concerning information that may become evidence.


If a person has reason to believe that there may be a dispute concerning an event, the person has a legal obligation to identify, protect and make the evidence available.1

This applies to physical evidence, documentary evidence, and even digital evidence.2 The challenge is determining when a person should reasonably expect litigation. Some circumstances are obvious, such as a building collapse. However, other circumstances are not so apparent. For example, when a person slips and falls in a grocery store, he may not realize that his clothing, especially his shoes, could be critical evidence in the case. By the same token, the store owner may not believe that saving a container at the scene of the event is important.

Digital information presents an even greater challenge. An e-mail that seems unimportant today could be critical tomorrow. The question arises as to the standard that a person must apply in making a decision as to whether to preserve items, documents or information. Is it a subjective belief or is there some objective standard that is to be applied? Texas case law has determined that the standard that a person must use in deciding whether to preserve potential evidence is if a party knows or reasonably should know that there is a substantial chance that a claim will be filed and that the evidence is in its possession or control will be material or relevant to that claim.1


In some circumstances, it is rather obvious that a catastrophic event has occurred and evidence needs to be preserved. For example, when there is a fire or a building collapse, a person should know that valuable information can be obtained through examination and testing of the debris. Other circumstances present greater challenges. For example, an architect or engineer or builder may want to maintain a sample of the concrete that was used in the construction of a building so that, in the event of a concrete failure, the compressive strength of the concrete could be established. In slip and fall cases, it is critical that the shoes of the injured party be maintained and, depending upon the nature of the incident, even the clothing of the injured party should be saved. In addition, the store owner should save any physical evidence that is at or near the scene where the person claims to have fallen.

An even greater challenge is presented in connection with digital information. In today’s world, people routinely send communication by e-mail, Facebook, Twitter, etc. On the one hand, every item of digital communication could be evidence. On the other hand, digital storage space is sometimes limited and it is necessary to purge old information. This is even more true in connection with paper documents. It is extremely difficult to know when a document should be saved or discarded. Of course, the easy solution is to simply save everything. However, it is sometimes impossible to do so. Therefore, procedures need to be put into place concerning how to preserve evidence, especially documentary and digital evidence.


If a person knowingly destroys or knowingly neglects to preserve evidence after litigation is reasonably anticipated, there are significant sanctions that can be imposed. The act of intentionally destroying or not preserving evidence is known as spoliation of evidence. There are significant sanctions if a Judge determines that there has been spoliation of evidence. Depending upon the nature of the evidence and how egregious the destruction was, a Judge can impose a number of sanctions, which can include:

  1. Giving a mild instruction to the jury to the effect that critical evidence was destroyed/not preserved by a party and then let the jury draw its own conclusions;
  2. 2. Issue a more severe spoliation instruction wherein the Judge identifies the party responsible for the spoliation and instructs the jury to presume that the destroyed evidence would have been harmful to the person responsible for destroying it;
  3. Dismissal of a Plaintiff’s case if the Plaintiff was responsible for the destruction or non-preservation of the evidence;
  4. Striking the defense if a Defendant was responsible for the destruction/non-preservation of the evidence; and
  5. Criminal sanctions if the matter involved a criminal incident.


In the case of a physical event, such as a building collapse or fire, it is critical that the fire scene be preserved if there is any indication that a fire started as a result of a faulty appliance or construction defect. It is critical that potential Defendants be immediately identified and that their representatives be given an opportunity to inspect the scene prior to any demolition or cleanup. Any offending items, such as electrical appliances, junction boxes, wiring, etc. should be removed from the area of origin if a fire is suspected of being ignited as a result of an electrical failure or the failure of an appliance. Those items should be preserved and there should be no destructive testing or examination unless all concerned have an opportunity to participate.

A manufacturer of products should always save a number of exemplar products, even after the product has been discontinued. Exemplars are very helpful in establishing whether the product has been altered after production. Exemplars can also establish or disprove design defects.

In regard to documents, companies should have a set document retention policy that specifies when documents are destroyed on a regular basis. Obviously, even if a document is scheduled to be destroyed, it should be preserved if there is reason to believe that it may be evidence in litigation. In addition to preserving one’s own documents, it is also a good idea to put potential parties on notice and request that they not destroy any items or information that could relate to the issue at hand. This notice can include physical evidence, documentary evidence and digital evidence.


Evidence is the stuff by which claims are constructed and defenses are mounted. It is critically important that evidence be preserved and properly handled. The failure to do so can create real problems that could result in monetary judgments, lost cases and even criminal sanctions. On the other hand, the proper handling of potential evidence can greatly enhance the success of a claim or a defense.

  1. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003); see also Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010).
  2. See, e.g., Super Future Equities, Inc. v. Wells Fargo Bank Minn., N.A., No. 3:06-CV-0271-B, 2008 WL 3261095 at *13-14 (N.D. Tex. Aug. 8, 2008) (awarding sanctions for failure to preserve electronic data).
  3. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex. 2003).


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