What is “Spoliation of Evidence,” and How Does It Affect a Personal Injury Case?

In our daily lives, we routinely think about things expiring and spoiling.

For example, milk has an expiration date stamped right on the container - and who hasn’t reached to the very back of the grocery store cooler, searching for the carton that will expire on the latest date possible? Medicines provide a “use by” date, and manufacturers warn us to throw them away after that. Even dry and canned foods have expiration dates, after which we are supposed to assume that they are not appropriate for consumption. And of course, coupons and warranties always seem to be expired when they would help us the most.

But what about evidence – does it expire or spoil? In the examples above, we cited spoliation or expiration that occurred simply due to the passage of time. But what happens if the evidence is spoiled as the result of neglect, or even more sinister motives?

In this article, we will discuss the spoliation of evidence and how it can affect personal injury litigation.

What Is “Spoliation of Evidence?”

“Spoliation of evidence” is an evidentiary principle that refers to the negligent or intentional destruction of evidence, or a failure to preserve evidence, relevant to pending or anticipated litigation. If one party alleges and proves that the other party improperly engaged in spoliation of evidence, a court can impose sanctions against an offending party.

The inquiry is highly fact-specific, and the sanctions available to the court can vary, depending on the particular circumstances and procedural posture of a particular case. Let’s take a look at an example to illustrate the point.

Trucking Company Spoliation of Evidence

Assume that a semi-truck is traveling too fast for the existing conditions, cannot stop when traffic backs up and strikes Laura Smith’s vehicle from behind. Laura has permanent and debilitating injuries and cannot afford her staggering medical bills. She files suit against the trucking company, Speedy Tractor Trailers, and the driver, Stan Jackson.

As Laura’s lawyers investigate the case, they find witnesses who mention that Stan had been driving erratically for several miles, “drifting” from one lane to the other, including the emergency lane. The lawyers suspect Stan may have been tired and falling asleep. As part of the investigation, they seek his hand-written logs and information from his ELD (electronic logging device). They suspect he might have been violating hours of service regulations, and that the requested information will prove it, thus allowing Laura to prove her personal injury negligence claim.

In his deposition, Stan admits to having kept a log, which he says he turned over to Speedy. However, Speedy hasn’t produced the login response to discovery requests.

Laura’s attorneys obtain a court order requiring Speedy to produce the log - but Speedy states that the log has been destroyed.

What now?

Remedies for Spoliation of Evidence

Remedies for spoliation of evidence can vary by circumstance and by judge. In this case, Laura would seek all available sanctions against Speedy.

For example, 2017 Oregon Revised Statutes, section 40.135 / Rule 311 states the following presumption of law: “[e]vidence willfully suppressed would be adverse to the party suppressing it.” In the case of Speedy Tractor Trailers, Laura would be able to get a jury charge explaining to the jury that they can presume the destroyed evidence would have been harmful to Speedy. This can be very helpful in proving a negligence claim.

But here, harsher sanctions are available. Because Speedy destroyed the information after being ordered by the court to produce it, sanctions are available under Oregon Rule of Civil Procedure 46. Laura could request a variety of sanctions against Speedy, including the following:

  • designating certain matters as established fact;
  • prohibiting the defendant from raising specific defenses or arguments;
  • striking pleadings, including the answer; and
  • holding a party in contempt of court.

These harsh sanctions are available because the law recognizes that our system of justice only works properly when everyone plays fairly and by the rules. There are few things more harmful to the system than the intentional destruction of relevant evidence.

Call with Questions

Many industries maintain intensive records. A review of these records is essential when determining if parties met the standard of care required by the law. For example, in cases involving nursing home negligence, medical malpractice, and trucking negligence, voluminous records should normally be available for review.

When these records turn up missing, there is often an innocent explanation, but sometimes negligence or other intentional actions cause spoliation of evidence.  We believe holding people responsible for such wrongful actions is essential to the protection of society.

If you have questions about a potential injury case, or how to investigate it, please call us with your questions. We will be happy to answer them.


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