When Does Your Business Have a Duty to Preserve Evidence?

If you are or anticipate being a party to a lawsuit, you probably know already that you have a duty to preserve anything that could be evidence. But that duty doesn’t just apply to the parties to a lawsuit—it applies to anybody who may have anything that could be evidence in any lawsuit—even if the party or entity with the potential evidence is not a party to the suit.

For business owners, this can create confusion. How do you know when to preserve evidence?

Accidental Loss or Destruction of Evidence

Most people or businesses who destroy or lose evidence, don’t do it secretly, like they do in the movies, furtively destroying evidence and making crucial evidence “disappear.” Rather, most people who destroy or lose evidence, do it innocently, and often, through regular company policies and procedures.

For example, companies may automatically overwrite video surveillance clips, or they may fix damaged property, or they may delete emails, files, or social media posts. All of these routine procedures could land you in trouble, if the things you are routinely overwriting, discarding, or altering, are evidence in a case.

When to Preserve Evidence?

So how do you know when you have a duty to preserve evidence?

There does not have to be an actual lawsuit in court filed, for the duty to rise. Anytime there is a reasonable anticipation of litigation, a party has a duty to preserve evidence.

Sometimes, this is simple to determine.

If you are the one suing or considering suing, then you would of course know that evidence that you have, needs to be preserved. That means all evidence—not just preserving evidence that is helpful to your case.

When you aren’t the party suing or being sued, things can get more difficult. You have to determine whether there is a reasonable anticipation of litigation between two parties or entities.

For example, if you or your business have surveillance of someone getting hit by a car, you can probably assume there will be some lawsuit surrounding that incident.

Or, you may already know that parties that your business deals with, are often involved in litigation, or one of those parties may have informed you, even casually, that they intend to sue the other person or business.

You may be privy to communication between parties that leads you to believe that litigation is coming, like being notified that the parties are making claims, or being notified by email that parties are in some kind of dispute.

Getting Notice

Most diligent attorneys will notify you if they believe that you have evidence relevant to a claim or lawsuit, so that you can take appropriate action to preserve the evidence.

You should make sure that these notices are not ignored by employees, and have a system to notify anybody in your company, when information, data, or documents, must be preserved once you receive such a notice.

Involved in business litigation? Need policies and procedures to deal with different possibilities? Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993 today.

Sources:

floridabar.org/the-florida-bar-journal/spoliated-evidence-better-than-the-real-thing/

americanbar.org/content/dam/aba-cms-dotorg/products/inv/book/214612/Chapter%201.pdf