Duty to Preserve Evidence | Spoliation in PA

Preservation of Evidence | Spoliation in PA

Pennsylvania law imposes a duty on all parties to a civil dispute to preserve evidence within their care, custody, or control.  Otherwise, the party who improperly disposes of evidence (“spoliation”) can face severe penalties, which can include:

• monetary sanctions,
• a requirement to pay the opposing party’s attorney fees, and/or 
• an instruction to the fact finder of an “adverse inference, ” i.e,  an instruction to the jury that the missing evidence would have been unfavorable to the “spoliating” party. Donofrio v. Ikea U.S. Retail, LLC, Civil Action 18-599 (E.D. Pa. May. 6, 2024). 

In practice, an adverse inference is a powerful tool. It can work to destroy a party’s claim or defense. But not every disposal of evidence amounts to “spoliation.” 

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Call or email our Pittsburgh lawyers for a consultation about preserving evidence in state or federal court, especially if you have received a “preservation letter” discussed below. Or, for answers to Frequently Asked Questions, see below.  

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Frequently Asked Questions

How Do Spoliation Issues Arise? 

Example 1:  Let’s say you were injured in a car accident — having limited tort or full tort coverage — when a commercial truck driver struck your vehicle head-on, because of his inattention, allegedly.  The trucking company-Defendant will likely possess all the evidence about the trucker’s conduct that day, such as his log book (showing how often he took breaks, and whether he had enough sleep to be driving). 

Moreover, the trucking company will also possess the truck’s service records.  Did the truck’s lane detection sensor fail? Was it a problem previously known to the trucking company?  In this example, all the key evidence in your case — for serious injuries —  will be in the Defendant’s possession, but what if the Defendant destroys the evidence before you see it?  There, the concept of spoliation might be the only way in your case, to prove liability.    

Example 2: 

Let’s say you sue a home improvement contractor — or other party — for breach of a written contract.  Only, the defendant kept possession of the original agreement without having made any copy.       

Let’s also say that the defendant recorded all your phone calls with him leading up to the contract. There, the evidence of your contractual terms — and the parties’ intentions entering into it — may be in the sole possession of the Defendant.  However, upon being sued, the defendant destroys all the evidence.  Now what? Here, once again, proving spoliation may be your only chance to prove the contract to prove a breach.  

 

How Do Courts Address Spoliation? 

When presented with an allegation of spoliation, a court must engage in a two-part analysis: first, did spoliation occur? Then, if it did, then what is the appropriate sanction? 

 

What is Spoliation?

According to our courts, spoliation is deemed to have occurred if:

1. The evidence was within the alleged spoliator’s control, 
2. There has been actual suppression or withholding of the evidence, 
3. The evidence was relevant, and, 
4. It was reasonably foreseeable that the evidence would be discoverable.”

State Farm Fire & Cas. v. Cohen, CIVIL ACTION NO. 19-1947 (E.D. Pa. Sep. 8, 2020), citing E.D., 2017 U.S. Dist. LEXIS 50173, at *20-21 (citing Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 112 (E.D. Pa. 2005)).

 

What is the “Bad Faith” Requirement?

The “actual suppression” or “actual withholding” element of a claim requires the movant to demonstrate that the alleged spoliator acted in “bad faith” in his or her failure to produce or preserve the evidence at issue. State Farm Fire & Cas. v. Cohen, CIVIL ACTION NO. 19-1947 (E.D. Pa. Sep. 8, 2020), citing Bull, 665 F.3d at 79. 

 

When Do the Duties to Preserve Evidence Kick In? 

A duty to preserve evidence will not commence until a party has reason to know: (1) that potential dispute might exist between parties; and (2) the evidence at issue — subject to potential disposal or alteration — will be relevant to the dispute.  Thus, a party destroying evidence can always say, “I didn’t know there would be a dispute.”  Or, “I knew a dispute was brewing, but the evidence I changed had nothing to do with it.”  

To avoid these questions of fact for the court — which can be time consuming and expensive to resolve — you will want to: 

1. Err on the side of preserving evidence that’s in your possession, and
2. Have your attorney write a “preservation letter” or “litigation hold letter” to the party holding evidence, which immediately triggers duties to preserve.  

 

What is a Preservation Letter? 

A well-written preservation letter (or “litigation hold” letter) does three things.  First, it identifies and delineates the nature and scope of the dispute at issue.  Secondly, it informs the party in possession of evidence of exactly how and why the evidence at issue is related to the dispute.  Third, it will clearly describe the evidence — or categories of evidence — to be preserved, such as text message, emails, video, or physical evidence.   

In the absence of a timely preservation letter, a court may find that the party who destroys evidence had no specific reason to know how or why the evidence was relevant to a particular dispute.  In that case, a court could refuse to take action for the destruction of evidence.  Marshall v. Brown’s IA, LLC, 213 A.3d 263, 2019 Pa. Super. 191 (Pa. Super. Ct. 2019).

 

When Will Sanctions Be Ordered?

As mentioned, a finding of “spoliation” involves a two part test:  did spoliation occur, and if so, what is the proper sanction to address the matter? Even if the party destroying evidence had truly engaged in spoliation, the court may not necessarily do anything.  The court’s response will depend on: 

1. the degree of fault of the party who destroyed the evidence;
2. the degree of prejudice suffered by the opposing party; and,
3. the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.

King v. Pittsburgh Water & Sewer Auth., 139 A.3d 336 (Pa. Cmmw. Ct. 2016). It will be within the court’s discretion to order an adverse inference instruction to the jury and/or make the “spoiling” party liable for the attorney fees to resolve the issue.  

 

Do Courts Award Attorney Fees For Spoliation in PA

Yes.

A court recently made a party — IKEA — pay for the attorney fees incurred by the opposing party who had tried to obtain the disposed of evidence.  See Donofrio v. Ikea U.S. Retail, LLC, Civil Action 18-599 (E.D. Pa. May. 6, 2024).  In Donofrio, a court held: 

On May 6, 2024, this Court granted Plaintiffs’ Motion for Sanctions^[1] against Defendant IKEA^[2] because IKEA engaged in spoliation of evidence and violated a court order. See ECF No. 379.^[3] Pursuant to Rule 37(e)(1) and Rule 37(b)(2)(C), this Court ordered that:

IKEA must pay Plaintiffs’ reasonable attorneys’ fees and expenses incurred in connection with Plaintiffs’ Motion for Sanctions (ECF No. 312), beginning with Plaintiffs’ January 2023 communications with IKEA to attempt to address IKEA’s incomplete 2022 productions, and including the evidentiary hearing on Plaintiffs’ Motion for Sanctions held on December 20, 2023 and January 29, 2024 and all subsequent briefing in connection with this Motion.

Donofrio v. Ikea US Retail, LLC, No. CV 18-599, 2024 WL 1998094, at *38 (E.D. Pa. May 6, 2024). The Court further ordered Plaintiffs’ counsel, Console Mattiacci, LLC (hereinafter “CML”) to submit a documented, itemized request for fees and expenses incurred in connection with the Motion for Sanctions. Id.

Can I Get Money Damages For “Spoliation” in PA?

Generally speaking, no.

Unlike other jurisdictions, Pennsylvania refuses to recognize a separate claim for “negligence” for the careless destruction of evidence.  In other words, in general, you can’t successfully sue a person for money, for accidentally destroying evidence relevant to your case.  In Erie Ins. Exch. v. United Servs. Auto. Ass’n, 2023 Pa. Super. 271 (Pa. Super. Ct. 2023), the court noted:  

Plaintiff argues that this Court should follow a California decision, Cooper v. State Farm Mutual Automobile Insurance Co., 99 Cal.Rptr.3d 870 (Cal. App. 2009), that allowed a promissory estoppel cause of action for spoliation, that Pyeritz is distinguishable, and that public policy considerations require recognition of its promissory estoppel cause of action. None of these arguments has merit.

 

How Do I Preserve Evidence in a Civil Case?

Here are four (5) tips to keep in mind to preserve evidence in your case: 

1. Keep electronic data safe from hacking or accidental deletion.  
2. Store physical evidence in a clean, dry place, free from contact with the elements or other other persons who could alter or destroy the evidence, accidentally or otherwise.  For example, avoid storing evidence in the trunk of your car or the corner of a basement prone to take on water. 
3. Keep evidence stored at a suitable temperature for preservation.     
4. Avoid using the evidence or item in any manner that could cause alternation through subtle wear and tear. For example, if you’re suing over a slip and fall, from a defective sidewalk, a key piece of evidence will be your shoes and the treads, to rule out your shoes as the cause of your fall. Thus, avoid using those shoes again until after your case resolves.   
5. Do not assume your lawyer’s office is a safe place to store evidence. Inquire where and how the evidence will be stored. It’s your case and your evidence. You might want to hold onto the evidence, pending trial.   

 

But What If I Need to Alter the Evidence?

Let’s say you’re suing the Defendant for causing water to enter your basement, as such the water itself is evidence. Do you need to let water accumulate in your basement for the duration of litigation? 

Or, you’re suing for damages from a motor vehicle accident, and your damaged vehicle is evidence. Do you need to refrain from getting your car fixed, and perhaps let your car sit in the driveway, not drive-able? 

No, but, there are two things you must do before altering any evidence in your case.  

1. Give the opposing party a reasonable opportunity to inspect the property as soon as possible (in other words, don’t say, “Come look at the evidence during the next two hours, or else!”), and  
2. Take numerous and very good pictures and video of any evidence prior to making any change being made to it, whether or not the opposing party takes you up on your offer to inspect the evidence.  

 

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