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On Behalf of | Apr 3, 2024 | Firm News

When I was a kid (and business attorney in training), my brother was always losing things. I never understood this for many reasons. For one, we did not have that many possessions to lose. And two, I always had a great memory so I did not understand a person who routinely misplaced what few possessions he had. It was a bit strange. But we are all a little different.

Legally, “losing things” is a major problem and I do mean major. You may have heard a fancy legal term called “spoliation” or “spoilation.” As an aside, one of the many problems with this legal concept is that judges and business attorneys all over the country use the spelling of this word differently. Some spell it one way; others, another; and a few even use it interchangeably. This is a major problem when legal search engines are based on keyword searches. It makes learning about the topic a bit frustrating.
Regardless of how you spell the word, the concept is the same. Spoilation is the negligent preservation or the intentional destruction of evidence. There are many tentacles to this legal concept so I do not want you as the reader to believe that this brief summary encapsulates every bit of spoliation, it is best that you ask a business attorney about it. But this piece does provide a bit of an overview of some important points.

You need to understand that spoliation is a bit of a punishment for bad behavior. Let me give you an example of how this scenario plays out. When I was a litigator before being a business attorney Tulsa, I once handled a slip and fall lawsuit on behalf of an elderly woman against a major retailer. This particular store faced west and had black tape covering the store windows to no doubt reduce air conditioning costs by blocking out the sun. On this particular day, a lazy customer did not return the loading cart to the proper place but instead placed it right in front of the door. Now when I say loading cart, I am not discussing the general shopping cart you get at a grocery store. I mean a cart that has a large handle and sets only about 6 inches off the ground. These are larger carts you find at feed stores.

My business client entered the store through the automatic sliding doors. Because the loading cart was very low to the ground, and she had no reasonable expectation that a cart would be parked there, she tripped over the cart and landed on her head. She was seriously injured.

When we got the case, we immediately sent out a mandatory evidence preservation letter to the store and the insurance adjuster assigned to the case. We specifically instructed everyone to maintain certain pieces of evidence securely, including any surveillance footage of the event.

When we filed suit, we learned that some of the surveillance footage was intentionally not preserved. We learned that our client’s entrance to the store was covered, and there was footage after the fall. What was not preserved was the time between the lazy customer leaving the cart in front of the door up until the time our client fell. No person except for the technician who made the decision to not preserve that data knows what was on that surveillance footage.

Obviously, this was detrimental to our case as we believe that footage to be very damning to the defense. Who knows what was on that tape? The tape no doubt showed numerous cashiers eyeing the cart and not doing anything to remove it. Maybe even someone from management walked by, saw the cart, and did not move it. We will never know.

When I spoke to opposing counsel, he advised he did converse with the person responsible for not preserving this information. This attorney represented to me that the footage was benign according to his conversations with the technician. The attorney never actually saw the footage. I have no reason to believe that this attorney was dishonest.

Not surprisingly, we prepared a spoliation motion to the judge. In the motion, I argued that the jury is no forever deprived of outcome-determinative information that could have persuaded their verdict. When researching this legal issue, I discovered that judges in Oklahoma have very broad discretion when it comes to issuing relief due to a spoliation issue. Something you need to understand is that every case is different just as every judge is different. Trying to predict with any certainty what a judge will do with a certain set of facts is kind of like trying to predict the weather in Oklahoma. The best you can do is guess even as a business attorney Tulsa.

I left that particular firm before the judge ever ruled on the motion. But in the research, I learned what judges can do. And understand, judges have many options in scenarios such as this.

One ruling a judge can make is to preclude any reference to the existence of the evidence. The judge can instruct both attorneys to not mention the destroyed evidence. This way, the jury never hears that such surveillance footage even existed. The idea behind a ruling like this is you can’t “unring the bell.” Put similarly, if a jury hears about the footage even once, then they know the footage existed at some point but no longer. If an attorney slips and mentions the footage, it could be a mistrial depending on the nature of the slip.

The second ruling a judge can make is a monetary sanction. Depending on the gravity of the spoliation, the judge can fine a spoilating party monetarily. The amount for such a sanction varies considerably and is solely within the judge’s discretion.

The most severe ruling that a judge can make in a spoliation situation is an adverse inference instruction. An adverse inference instruction is very damning to a spoilating party. An adverse inference instruction is where a judge looks at the jury while wearing a robe after all the evidence has been heard and instructs as follows (and we will use my case above as an example):

Ladies and gentleman of the jury, you need to know that surveillance footage existed in this case that was not properly preserved. Whether it was negligently preserved or intentionally destroyed is a fact question I leave for your determination. The footage in question was video surveillance footage from the time the cart was parked in front of the door until the time when the Plaintiff entered the store and fell. This evidence was not preserved by an agent of Defendant’s store.

In your deliberations, you are to assume that whatever was on this footage was harmful to defense’s case and in no way incriminating to the Plaintiff. You are to take every fact associated with this destruction in a light most favorable to the Plaintiff and least favorable to the defense.

In my litigation experience, if the judge intended to issue an adverse instruction, the case most likely settled rather quickly. Imagine the impact this has on a juror who is completely unfamiliar with the legal system. An elected public official in a black robe looks them in the eye and tells them that a party to a case intentionally destroyed something that harmed their case.

When I was a defense lawyer, our goal was often to avoid facts that would “piss off a jury.” The idea is if a jury gets upset, then their chances of awarding a huge verdict increase exponentially. Not surprisingly as a Plaintiff’s lawyer I uncovered every stone until I found such a fact and then intended to blow it up in 72-point font during my opening statement.

If you have any issue that you think you could turn into a lawsuit, save everything. Save it electronically in multiple locations. Do not trust that your automatic data backup onto the server is working. Put it on a flash drive and give it to your lawyer. Print out multiple copies. Give one to your attorney and keep one for your records. You may think this is overboard, but I do not know how many six and seven-figure verdicts were issued because someone “forgot” to hit the save button.

If you have a potential issue where you believe litigation is imminent, feel free to make me your go-to business attorney in Tulsa. I am happy to discuss and advise with whatever helpful information I can.