How Document Retention Could Save You
A professional’s inability to produce important evidence during a lawsuit alleging negligence may result in sanctions.1 State law determines whether spoliation of evidence may result in sanctions, and the nature of any sanctions imposed against a party who fails to preserve important evidence can vary greatly by state.
By Terri Stough, Esq.
In Illinois, if a party breaches the duty to preserve evidence, the court can award monetary damages to the non-breaching party. The non-breaching party will be required to prove the likelihood of prevailing without the missing evidence, and the amount that could have been recovered if the missing evidence were available.2
Under California law, the duty to preserve evidence generally arises from a contract. If the contract does not contain an agreed liquidated damages amount, the non-breaching party must prove the amount of damages caused by the failure to preserve evidence.3
New York courts have imposed a wider range of sanctions on parties who dispose of crucial evidence. Under New York law, the jury is allowed to infer that the missing evidence would have been unfavorable to the party who lost or destroyed it.4 In more serious instances of lost or destroyed evidence, the court can strike the defendant’s answer,5 which has the effect of stating that the defendant does not contest the allegations in the complaint and can result in an automatic win for the plaintiff. New York courts can also impose monetary sanctions in the form of attorneys’ fees and costs incurred by the non-breaching party in connection with successfully arguing a spoliation of evidence claim.6
In Ohio, disputes over lost or destroyed evidence can result in sanctions to a party by excluding expert testimony, which can be devastating to the breaching party’s position.7 Texas courts have the ability to enter a default judgment against a party as the most severe sanction for destruction of evidence.8
To avoid sanctions for spoliation of evidence, prior to destroying any documents, architects and engineers are strongly advised to consult a local attorney specializing in construction litigation for counsel on the nature of documents that should be preserved and the recommended duration of document retention.
1 The most common evidence types of evidence are proposals, manufacturer’s data, construction photos, project correspondence, as-built drawings, construction documents, and project accounting. In some instances, defective parts or other objects in the professional’s possession will be important evidence.
2 Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 624 (2d Dist. 2007).
3 Coprich v. Superior Court of Los Angeles County, 95 Cal. Rptr. 2d 884,891 (Cal. Ct. App. 2000).
4 Lowe v. Fairmont Manor Co., LLC, No. 153214/12, 2014 N.Y. Misc. LEXIS 5646, at *4 (Sup. Ct. Dec. 14, 2014).
5 Lentini v. Weschler, 120 A.D.3d 1200, 1201 (N.Y. App. Div. 2014).
6 Zacharius v. Kensington Publishing Corp., No. 652460/2012, 2015 2015 N. Y. Misc. LEXIS 3251, at *17 (Sup. Ct. Sept. 1, 2015).
7 See Hetzer-Young v Elano Corp., No. 2013 Ohio App. LEXIS 1017, at *29 (Ct. App. March 21, 2014) (Although the trial court barred Plaintiffs’ expert testimony, the appellate court found it error to do so.).
8 Trevino v. Ortega, 969 S.W.2d 950, 959 (Texas 1998).
