Interested non-parties may still have a duty to preserve evidence.

Not a Party To the Case? You May Still Have to Preserve.

Deciding what should be preserved and who should preserve it can be difficult when litigation first begins.  However, do not be fooled.  A party can feel the wrath of the Courts if an interested non-party fails to preserve information leading up to trial.

In the case of Pettit v. Smith, the court found that a state agency had a duty to preserve evidence even though the agency was not a party to the case.  This case involved a claim of excessive force by an inmate against the alleged attacking officer, supervising officers, and the state of Arizona.  However, it did not include the agency that oversaw the state prison, which is referred to as ADC. 

The plaintiff claimed that the defendants and ADC should have taken measures to preserve evidence once they had notice of the litigation.  On the other hand, the defendants claimed that ADC had control over the missing evidence, and the defendants should not be held responsible for the disappearance of evidence they did not control.

One concern in this case was whether ADC was exempt from the duty to preserve because they were not a party to the case.  The court held that ADC was an interested party (though not named as a party) because they had received information regarding the potential excessive force complaint from the prison.  Overall, the court deemed that ADC had a duty to preserve so long as they had some interest in the case, and they had notice that litigation may occur.

Another issue was whether ADC actually had notice that litigation may occur.  The court stated ADC had notice for two reasons.  First, ADC was an agency of the state of Arizona and Arizona was a named defendant in the case.  Second, ADC should have known litigation might take place because they received an excessive force claim, which on its own may lead to litigation.

The description of the missing evidence made the court’s decision even more clear.  Missing evidence included the following: video of the actions taken, the supervisors’ report of the incident, two investigative reports, and photos of the plaintiff’s alleged injuries when in the hospital.

The court stated that the duty to preserve is not absolute, and that there should be room for interpretation based upon the facts of the case.  When looking at whether there was a spoliation issue, the court must look to the “reasonableness under the circumstances.”  However, under the facts of this case, there was no reason for ADC’s failure to preserve the evidence that went missing.

The failure to preserve evidence in this case resulted in steep sanctions on the defendants.  The presiding judge stated that the parties may mention and present arguments regarding the missing evidence, and the jury may infer the missing evidence was in favor of the plaintiff.

Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015.  Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting.  Victoria is a former D3 college basketball player, and she has an interest in Tax Law and Civil Litigation.  After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey.  

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