This is part three of a four part series discussing the spoliation of evidence. For previous posts discussing the spoliation of evidence, please click here.

When I took on the case, the only favorable known fact was that the tractor trailer owner pled guilty to eleven minor, maintenance violations involving the tractor trailer’s maintenance logs, license plate light and brake adjustments.  Among those eleven minor violations were three “out-of-adjustment” brake citations, which although apparently insubstantial, could provide the fuel to tip the balance of liability in my client’s favor.  Could any of those brake adjustment deficiencies have contributed toward this crash, I wondered?  If I could prove that theory, the balance of this “red light/green light” stand-off could resolve in John’s favor.  Without such evidence, it was unlikely that I could sustain plaintiff’s burden of proof.

Unfortunately, by the time John was well enough to speak with me to ask for my help, the tractor trailer’s brakes were no longer available.  During litigation, I deposed the trucking company owner.  He testified that he altered the tractor trailer in the months postaccident by salvaging serviceable parts and discarding damaged parts whose utility was rendered worthless by the crash.  A case of evidence spoliation was slowly evolving.

I then compared that testimony to the document demands which I had served upon the lawyer for the trucking company.  The trucking company lawyer’s response to my document demand contained a list of objections to the documents I requested.  That list recited dozens of objections in a “privilege log” in which the defendant’s lawyer objected to furnishing me with a variety of documents.  The basis of each objection was listed as attorney-client privilege and work product “in anticipation of litigation.”  This objection was key because it proved that the defendant was reasonably aware that litigation may arise from this accident.

But, the critical question here was whether the defendant anticipated litigation before or after the trucking company’s owner spoliated the evidence.  As luck would have it, a separate property damage (subrogation) dispute ensued immediately after this crash.  Insurance carriers for both vehicles sought contribution from each other to pay for the property damage to the vehicles, street lamps and signage damaged in the crash, each claiming that their insured had the green light.  That property damage  dispute ended in a draw, with each carrier bearing the cost to repair its own vehicle.

The “arbitration judges” which decided the inter-company property damage dispute determined that 1) there was no evidence to implicate either driver; and 2) those eleven minor tractor trailer violations could not be linked to any cause of the crash.  In other words, in the personal injury case that I filed, I would have to find a way, with the same exact evidence, to prove that the tractor trailer driver was at fault, something that my client’s own insurance company was unable to do in the inter-company property damage dispute.

To accomplish this objective, I scoured the spoliation landscape like a highly-evolved primate foraging for food in the wilderness.  Alas, the forbidden fruit revealed itself.  The import of that subrogation action was that the “anticipation of litigation” objection was lodged by the trucking company attorneys BEFORE the trucking company owner himself destroyed the evidence. Thus, I was able to establish beyond any doubt that the defendant spoliated this evidence. I successfully argued that the trucking company’s liability insurance carrier is essentially the alter ego of the insured itself.  The drama of spoliation was beginning to unfold.