Update (August 8, 2011): Minnesota Supreme Court reversed the Court of Appeals last week.
Original post (August 25, 2010): “Spoliation,” also known as the destruction of evidence, often triggers thoughts of deliberate malfeasance — deep-sixing the smoking gun and the like. Far more common, however, is the repair of a broken machine followed by a lawsuit based on the since-repaired condition, the thoughtless discarding of what was thought to be junk, the careless disposal of old files — that is, the general and relentless up-keep and clean-up that occupies almost all of us every day (except for pack-rats, slobs, and detail-oriented litigators (categories emphatically and unfortunately not mutually exclusive)).
How about a scenario where home-buyer buys a home, finds a mold/moisture problem, puts seller and builders on notice of a problem over a two year period, and then gives about a week’s notice before undertaking repairs to the moldy water-damaged home?
When the home-buyer fixed the problem before those charged with liability for the problem had a chance to inspect, to photograph, to document, or to evaluate it, is it fair to exclude all physical evidence of the alleged damage to the home and exclude any expert reports relating to the moisture intrusion and mold infestation (and thus, of course, torpedo home-buyers entire case)?
“Yes,” concluded Wright County District Court Judge Stephen M. Halsey, and “Yes,” affirmed the Minnesota Court of Appeals in a decision first reported by Minnesota Litigator here.
The case will be argued before the Minnesota Supreme Court on Wednesday, September 1.
Regardless of whether the Minnesota Supreme Court affirms the Court of Appeals or adopts the analysis of Judge Roger M. Klaphake‘s dissent in that decision, the lessons to be learned by legal counsel are clear: make sure to give adversaries meaningful advanced notice before destroying evidence at the center of a client’s legal claims. If everyone’s on board, the grave risk of a spoliation sanction is reduced to zero.