March 3, 2008

To prevail on a legal claim a party must persuade the judge or jury of its merits by presenting evidence in support of the claim.  The preservation of evidence is critical to obtaining a successful outcome.  In the context of certain environmental matters, a litigant may be required to present evidence of samples and laboratory analysis of contaminated soil or groundwater or other evidence to demonstrate whether contamination has or has not occurred. 

While laws vary throughout the country, courts regularly impose sanctions for spoliation of evidence in cases where a party fails to adequately safeguard relevant evidence.  Spoliation generally refers to the destruction of evidence.  Depending on the law applicable to your claim, sanctions may be imposed for the intentional, negligent, or even inadvertent destruction of relevant evidence.  In severe cases, dismissal may be warranted. 

The need to safeguard evidence is often a critical element in clean up cost- recovery claims.  SeeZands v. Nelson, 797 F.Supp. 805, 820 (S.D. Cal. 1992) (plaintiff’s failure to inspect tank system which it exclusively controlled prior to removal mandated that burden of proof not be shifted to defendant).

In Ameripride Serv., Inc. v. Valley Industrial Serv., Inc., No. S-00-113 (E.D. Cal. Aug. 8, 2006) (order granting spoliation sanctions) a federal district judge sanctioned an industrial laundry facility that removed sewer pipe and soils containing perchloroethene, also known as “perc” or “PCE,” one day before another litigant had scheduled an inspection.  The laundry facility removed a concrete wash pad, wastewater piping and 110 tons of PCE-impacted soils.

In Ameripride, the Court found that the sanctioned party’s failure to preserve evidence which it knew or should have known was relevant to the pending case was “unacceptable.”  As a sanction, the Court instructed the jury that it should draw an “adverse inference” against the laundry and specifically find that the removed pipes leaked PCE-contaminated wastewater into the soil and groundwater and caused contamination.

What steps can you take to limit your exposure to potential spoliation sanctions?  First, you should retain counsel to advise you of the merits of your claim and help identify the evidence on which your claim is based.  If further investigation is required to identify the evidence, your attorney can provide advice as to how you can protect any available privilege claims that may arise in connection with the investigation.

After the evidence is identified, take steps to retain and preserve the evidence.  An attorney can guide you through the process of preserving evidence.  Evidence may also be documented through photographs and video records.  Depending on the circumstances of your case, you may create a site map to identify the location of pertinent evidence.  Be aware that any documents you create will likely be discoverable by all parties in any subsequent litigation.  Similarly, recorded interviews and written statements are likely discoverable and caution should be given before creating such evidence if you have not first consulted with your lawyer.

No matter how carefully you document the evidence, such documentation is no substitute for the real thing.  As warranted by the facts of your particular case, all interested persons should be notified of the existence of the claim, and offered an opportunity to inspect the evidence.  If you have not already done so, retain counsel to coordinate and conduct the inspection and offers to inspect.  These offers to inspect should be in writing, and copies should be retained for the file. Even after all interested parties have inspected the evidence, continued care must be given to preserving and safeguarding the evidence. 

With regard to the preservation of evidence, federal and state regulators are held to the same standard as private parties involved in litigation.  Regulators must collect evidence to document that violations of environmental statutes or regulations have actually occurred.  If federal and state regulators fail to collect this evidence, they may not be able to prove that a violation has occurred.  Inspectors often take photographs and collect samples to document conditions on the date of an inspection.  A regulated party may take photographs or collect split samples of materials that are gathered on the date of an inspection.  In some cases, your counsel may advise you to retain an expert to assist with the collection of evidence.  This evidence may be used at a later date to refute the government’s allegations.   

Hessian & McKasy’s Environmental Law Attorney Practice Group has extensive experience in litigating environmental matters.  As environmental attorneys we defend and prosecute claims on behalf of our clients, and handle a full spectrum of environmental issues. 

The information contained within this website does not constitute legal advice.  Please see the information contained in the Disclaimer section on the home page.  Please feel free to contact any of the following individuals for more information about the issues discussed herein:

Joe Maternowski, (612) 746-5754, 

The views expressed here are my own and do not reflect the views of my employer, Hessian & McKasy P.A.

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