Preservation Letters in Personal Injury Cases

by | Aug 1, 2018 | Personal Injury |

Even when a car wreck or another type of personal injury case seems “open and shut,” it may not be as simple as you think.

No matter how obvious liability and damages seem, we will have to prove it with admissible evidence before you can be compensated – how do you collect that evidence and what happens if you think the other side is hiding it?

People act out of self-interest. Hopefully, most people will follow the law and act ethically. But, we know that many people do not – that may be the reason the accident or injury happened in the first place, and the defendant may actively try to hide any evidence of their liability to protect themselves… this is why, in some cases, your attorney must act quickly to send a preservation letter.

What is a “Preservation Letter?”

The first step in many lawsuits involves negotiating with the insurance company before we even file the lawsuit – a process that may give an unethical defendant time to “clean things up” and get rid of damning evidence.

When we are aware that certain types of evidence may be in the possession of a defendant or other witnesses, we can immediately send what is called a preservation letter – putting them on notice that we know they have the evidence, that a lawsuit is going to be filed, that we will subpoena the evidence, and that they have a legal obligation to preserve the evidence.

Types of evidence that could be in danger of destruction may include:

  • Video recordings;
  • Audio recordings;
  • Documents and other business records;
  • Witness statements;
  • Truck driver’s logs;
  • Electronic evidence; or even
  • A vehicle that is the subject of a lawsuit.

For example, a store may have caught a slip and fall incident on video – if it is not favorable to the store, that video might be “accidentally” destroyed before the subpoena arrives. It’s store policy to destroy video recordings after one week, they might say. Or, the tape automatically records over itself every 48 hours…

Who Do You Send the Preservation Letter To?

When appropriate, your personal injury attorney will send a preservation letter to the person or company that has the evidence, instructing them to preserve the evidence and putting them on notice that there is a lawsuit pending.

That could be the defendant, the defendant’s employer, or any third party who is possession of evidence like a storefront surveillance camera that captures a car wreck on the road outside.  

What Happens if They Destroy or “Lose” the Evidence?

If you send a preservation letter and the evidence “disappears” before the subpoena arrives, we may be able to get the court, at your trial, to give a “spoliation instruction.”

The court can tell the jurors that:

  • The evidence was under the control of the defendant;
  • The defendant destroyed the evidence; and
  • The jurors can presume that the evidence would have been bad for the defendant.

If you don’t send the preservation letter, and the defendant was not on notice that a lawsuit and subpoena were coming, you may not get the spoliation instruction, however, and jurors may never know that there was evidence they were prevented from seeing.

Personal Injury Attorneys in Myrtle Beach and Conway, SC

The SC personal injury and car wreck attorneys at Coastal Law will act quickly to preserve any evidence in your case, negotiate your claim with the insurance company, and take them to trial if they do not pay full and fair compensation for your injuries.

Call now at (843) 488-5000 or send an email through our website to speak with an attorney today.

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Charleston, SC 29401

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