Contractors and Spoliation of Evidence Part 1

The risk of spoliation of evidence is an increasing concern in construction litigation. The complete and full investigation of all the facts is crucial for understanding past events and the legal ramifications for those events. Accessibility to documentation and evidence is vital for a party, such as a contractor, to refute claims of construction defects. This article will discuss spoliation as it relates to contractors in the construction industry.

What is Spoliation?

Spoliation is the destruction or discarding of evidence or the failure to preserve evidence for use in a current or future litigation. Unfortunately, spoliation issues can arise even when contractors make good faith repairs. For example, during sample testing, a contractor may discard physical evidence which could open the door to a spoliation claim. Contractors are left with the decision on whether to fix the defect or preserve the evidence for fault identification.

How is Spoliation Determined?

Upon discovering that evidence has been destroyed, courts will seek to determine if the contractor is liable and should be penalized for making the repair. Courts must determine if the contractor intended to destroy the evidence intentionally, or if the evidence was destroyed for a necessary purpose. Next, courts will verify whether or not the contractor gave proper notice to an owner or other key parties before destroying such evidence. Last, courts will determine the impact spoliation will have on the case. For example, if there is no other evidence to prove a defect, this can be detrimental to the case as a whole.

For the rest of the article, read part two.

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Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.