Preserving the Truth: Best Practices for Evidence Preservation in Insurance Litigation

By Philip Colesanti

Preserving evidence is crucial in insurance litigation. Whether dealing with property damage claims, personal injury cases, or any other form of insurance-related dispute, the integrity and availability of evidence can significantly impact the outcome. This blog post, based on a presentation at the recent FIFEC conference, delves into the best practices for preserving evidence in insurance litigation, drawing on insights shared by Philip Colesanti.

Understanding Evidence Preservation

Preserving evidence means maintaining and safeguarding physical and digital materials relevant to a claim or lawsuit. It is essential for ensuring that the truth is upheld in legal proceedings. Failure to preserve evidence can lead to spoliation, which may result in adverse inferences, sanctions, or even case dismissals.

The Legal Framework in Florida

Florida’s approach to evidence preservation is rigorous. The state recognizes a separate cause of action for spoliation of evidence, requiring parties to maintain and preserve relevant materials. Key cases such as DePuy Inc. v. Eckes and Rockwell International Corp. v. Menzies have shaped the legal landscape, emphasizing the importance of evidence preservation.

Best Practices for Preserving Evidence

1. Develop a Comprehensive Policy: Establish clear guidelines for evidence preservation. Ensure all employees are trained on these policies. Regularly review and update the policy to comply with current laws and best practices.
2. Implement Timely Preservation Measures: Act swiftly when an incident occurs or a claim is filed. Identify and secure all relevant evidence immediately. Use legal holds to prevent the destruction of evidence.
3. Utilize Technology Effectively: Employ digital tools to track and store evidence. Use software to manage electronic discovery requests. Ensure data backup systems are in place to prevent loss.
4. Maintain Detailed Records: Keep thorough documentation of all preserved evidence. Record the chain of custody for physical evidence. Maintain logs for electronic data access and modifications.
5. Educate and Train Staff: Conduct regular training sessions on evidence preservation. Ensure staff understand the consequences of spoliation. Promote a culture of compliance and integrity.
6. Collaborate with Legal Counsel: Work closely with attorneys to understand legal obligations. Seek legal advice when unsure about preservation requirements. Involve legal counsel in developing and implementing preservation strategies.

Dealing with Spoliation

Spoliation occurs when evidence is destroyed, altered, or otherwise made unavailable. Courts in Florida take spoliation seriously, often imposing sanctions on offending parties. The severity of sanctions depends on factors such as the extent of prejudice caused and whether the spoliation was intentional or negligent.

1. Identify Potential Spoliation Risks: Assess areas where evidence could be at risk of destruction. Implement measures to mitigate these risks.
2. Document Preservation Efforts: Keep detailed records of all efforts to preserve evidence. Ensure transparency and accountability in the preservation process.
3. Respond Promptly to Preservation Requests: Act immediately upon receiving preservation letters or legal holds. Communicate with opposing parties to clarify preservation expectations.

Legal Standards and Obligations

Florida law imposes strict standards for evidence preservation. Businesses and individuals must preserve evidence relevant to potential litigation once they are aware of an incident or claim. The duty to preserve can arise from contracts, statutes, or common law.

Case Studies in Evidence Preservation

Several landmark cases illustrate the importance of proper evidence preservation and the consequences of spoliation:

• DePuy Inc. v. Eckes: Highlighted the irreparable prejudice caused by the loss of key evidence in a hip replacement case.
• Rockwell International Corp. v. Menzies: Demonstrated the dismissal of a liability phase due to the plaintiff’s loss of crucial bolts in an industrial accident.
• League of Women Voters v. Detzner: Showed how spoliation can lead to adverse inferences and sanctions.

Hypothetical Scenarios

Consider the following scenarios to understand practical challenges in evidence preservation:

1. Convenience Store Cameras: A plaintiff requests footage from 48 cameras for 24 hours before and after an incident.
   • Action: Assess the feasibility of providing the requested footage and discuss limitations with legal counsel.
2. Roof Repair During Litigation: An insured party repairs a roof without preserving the damaged shingles.
   • Action: Document the repair process and explore alternative evidence such as photographs or eyewitness testimony.

Conclusion

Effective evidence preservation is a cornerstone of successful insurance litigation. By following best practices and adhering to legal standards, insurance professionals can safeguard the integrity of their cases and avoid the pitfalls of spoliation. The insights shared by Philip Colesanti underscore the importance of proactive and diligent evidence preservation.

Key Takeaways

1. Develop and implement a comprehensive evidence preservation policy.
2. Act promptly to secure and preserve evidence when a claim arises.
3. Use technology to manage and track evidence effectively.
4. Maintain detailed records and documentation of preservation efforts.
5. Educate and train staff on the importance of evidence preservation.
6. Collaborate with legal counsel to ensure compliance with preservation obligations.
7. Respond promptly to preservation requests and document all actions taken.
8. Understand and apply legal standards for evidence preservation in Florida.
9. Learn from case studies and hypothetical scenarios to improve preservation practices.
10. Prioritize the integrity and availability of evidence to uphold the truth in litigation.

By adhering to these best practices, insurance professionals can enhance their litigation strategies and ensure that evidence is preserved for future legal proceedings.