Spoliation Letter

What is a Spoliation Letter?

You Strengthen Your Legal Claim When You Send a Spoliation Letter Demanding Other Parties and Witnesses Preserve Evidence

These documents have many names:

• Spoliation letter
• Preservation letter
• Preservation of evidence letter
• Evidence preservation letter
• Preservation notice
• Notice of preservation
• Litigation hold letter
• Duty to preserve evidence letter

No matter the title, these papers share a purpose: Tell potential defendants in a lawsuit or insurance claim to save the types of evidence listed and not alter or destroy it.

This article explains what to include in a spoliation letter in a tort claim (i.e., a personal injury lawsuit based on a motor vehicle accident or a workers comp claim for a job-related concussion). And it also provides a sample preservation of evidence letter to serve as a starting point.

Keep reading to learn about spoliation letter basics.

And call our law firm to see if you have a potential case. See why we get named among Virginia’s best lawyers in workers compensation, traumatic brain injury, construction accident, disability, and car crash cases. And what we can do for you and your family.

Spoliation Letter Goals

A letter asking a potential litigant or party to preserve evidence has two goals. 

First, ensure that the person does not lose, alter, tamper with, delete, or destroy evidence that can help your legal claim.  

Second, persuade the judge (or a deputy commissioner in workers comp) to punish the other party for spoliation of evidence if that party fails to save items despite having notice of potential litigation. 

This punishment may include: 

• Instructing the jury that the other party lost, altered, or destroyed evidence and that the jury may infer the evidence would have harmed the party failing to preserve the evidence.

• Dismissal of the action (if the plaintiff spoliates evidence)

• Default judgment (finding for the plaintiff because the defendant destroyed evidence)

• Sanctions (assessing attorney fees, court costs, and litigation expenses against the party that failed to preserve evidence and its attorneys)

• Reopening pretrial discovery (allowing the party harmed by the destruction to send more interrogatories, requests for production of documents, or requests for admissions or take additional depositions)

And in some jurisdictions, you may even get a separate cause of action for spoliation against the offending party. 

What Evidence Should the Spoliation Letter Ask the Other Party to Preserve?

No bright-line rule governs what evidence you should ask the other party to preserve. Your imagination is the only limit on the evidence you can use to develop facts to meet your burden of proof or negotiate a car accident settlement. 

But here are some examples of types of evidence you should ask the other party to preserve in a spoliation letter:

• Advertising and marketing materials
• Attendance reports
• Bills of lading
• Blueprints
• Business records
• Call logs
• Claims notes
• Communications between staff and insurance personnel
• Correspondence to and from OSHA or the state agency regulating employment and labor laws
• Diagnostic imaging
• Dispatch reports
• Documents (electronic and paper) concerning safety rules, reporting policies, and procedures after workplace injuries
• Emails
• Employment files (applications, job descriptions, background checks, earnings statements, schedules)
• Freight/cargo notes
• Hard drives
• Insurance cards
• Insurance contracts
• Invoices
• Maintenance records
• Manufacturer notices
• Medical records
• Photographs of the collision/accident scene, vehicles, and injuries
• Real evidence
  • Automobiles (in crashworthiness, tire defect, and motor vehicle collision cases)
  • Physical objects (such as weapons in assault and battery cases or products, machinery, equipment, guns, and broken jars in products liability cases)
  • Product labels
• Recorded statements that were given to the claims adjuster by you or witnesses
• Repair estimates from mechanics or contractors
• Research and development materials for the product
• Shareholder reports
• Social media profiles (Facebook, LinkedIn, Instagram, Twitter)
• Text messages
• Vehicle black-box data
• Vehicle inspection records
• Video surveillance footage
• Videos about the product
• Work schedules

Sample Spoliation Letter in a Truck Accident Case

Below is an example of a spoliation letter sent in a truck accident claim (we changed some details, including the names and dates).  

We represented the accident victim in workers comp and third-party actions arising from the tractor-trailer crash.  

March 1, 2023

Sent by Certified Mail, Return Receipt Requested

ABC Trucking Co. 

101 Danger Dr.

Virginia Beach, VA 00000

Our Client: Wesley Worker

Accident Type: Truck Crash

Date of Loss: February 5, 2023

Location of Loss: Interstate 64 (near Staunton)

Spoliation Letter: Notice to Preserve Evidence

Dear ABC Trucking Co:

Our law firm represents Wesley Worker in a claim for personal injuries suffered in a collision occurring on February 5, 2023. 

Mr. Worker suffered head trauma (a concussion resulting in post-concussion syndrome), a herniated disc at L4-L5, and a torn rotator cuff when your driver, Scott Smith, crashed his tractor-trailer into Mr. Worker’s car. Mr. Worker’s treating orthopedic surgeon is now recommending spinal fusion.  

This letter demands that you preserve and not alter any evidence relating to this wreck, including, but not limited to, the following: 

• The vehicle itself (tractor and trailer) so that our expert witness may inspect it

• Any equipment involved in the collision

• All photographs, video recordings, audio recordings, computer media, measurements, physical evidence, documents, materials, and any other item relating to the incident, the scene, or other equipment, people, or things near the collision site

• All photographs, video recordings, audio recordings, computer media, measurements, physical evidence, documents, materials, and any other item relating to the crash, your driver, or your company that you possess or control

• The driver’s qualification file

• The driver’s investigation history file

• The driver’s personnel file (including pre-employment drug test results, background checks, hiring documents, disciplinary records, random and post-accident drug test results, and other employment records)

• Any cell phones (including cell phone data) related to the driver and other employees or agents involved in the incident or your company’s post-crash investigation.

• The driver’s medical file, including DOT physical certifications

• The driver’s daily log or on-board recording device for three weeks before the collision and two weeks after, including all supporting data. Examples of supporting data include the following: bills of lading, border crossing reports, credit card receipts, damages reports, delivery receipts, dispatch records, freight bills, fuel billing invoices and statements, fuel receipts, gate record receipts, inspection reports, overweight and oversize permits, port of entry receipts, toll receipts, tracking records, traffic citations, weight/scale tickets.

• Electronic data from the vehicle (including printouts from any commercial software program) showing the driver’s log book entries for the year before this incident.

• Maintenance records for the driver and the commercial motor vehicle involved in the incident

• All documents prepared or presented by any company representative relating to the safe operation of a commercial vehicle or the safe operation of a trucking company in the past five years.

• All freight and loading information for the load the driver’s vehicle carried when the crash occurred

• All data from the electronic control monitor or the vehicle’s “black box” in the engine or cab

• All GPS or geographic tracking data showing the truck’s location for the three months before the crash through the date after the crash

• All lease and trip contracts applicable to the driver or the vehicle involved in the collision

• All communications regarding the crash by CB radio, e-mail, cell phone, text message, in-cab communication device, phone application, letter, or other means

• All training and education (including on-the-job training) provided by you or on behalf of your company in the past five years and in any way related to operating a commercial motor vehicle

• All documents about collisions involving the driver

• All documents about the tractor-trailer involved in the incident

• For the vehicle involved in the subject incident: Documents about vehicle title; registrations; operators manuals; maintenance schedules; inspection reports; log books, ledgers, files, or repairs

• Communications between you and the driver for the period beginning 90 days before the incident

• Copies of all communications and transmissions between the driver and you that were transmitted through any system on-board the vehicle involved in the subject incident for the period beginning 30 days before the subject incident and ending seven days after the subject incident

• All data from on-board audio or video recording or monitoring devices or any other driver safety monitoring system on the commercial motor vehicle involved in the collision

• All documents (including photographs, drawings, or videos) evidencing damage to any vehicle or other property in the subject incident, including but not limited to repair estimates, appraisals, and bills.

• All driver vehicle inspection reports for the vehicle involved in the subject incident for the period beginning six months before the subject incident and ending one week after the subject incident

• All pre-trip inspection reports for the trip in question and three months before the date of the subject incident for the vehicle involved in the incident and Mr. Smith

• All liability insurance contracts (first-party and third-party insurance) that may apply to the claim (including claim reserve amounts)

• Witness statements

• All still shots or video from any cameras on board when the crash happened

• All computer, electronic, typed, or handwritten messages created in the first 72 hours immediately after the crash between your company and anyone else relating to the facts, circumstances, and investigation of the incident

• Any computer messages your company received from Mr. Worker or third parties in the first 72 hours immediately after the crash

• Any notes or documents created by your company or its agents as part of this crash’s investigation

• Any other information, real evidence, or documents that may be relevant to the incident

Please take steps to preserve these items and anything else related to this incident. In addition, do not alter or destroy any related materials. 

The negligent or intentional destruction of evidence will lead us to seek discovery sanctions, such as default judgment, an adverse jury inference, and the assessment of attorney fees and costs. 

Thank you for attending to this matter. 

I look forward to working with you and your counsel to resolve this claim. 

Sincerely,

Corey R. Pollard

When Should I Send a Spoliation Letter?

You should immediately send a letter to preserve evidence to all potential defendants – in every type of consumer law, personal injury, truck accident, workers comp, trade secrets, and breach of contract case.

You have two reasons for sending the spoliation letter before you have filed the action or brought the claim.

First, the sooner you send the preservation notice, the more likely the potential defendant will save the evidence.

Second, suppose you seek spoliation sanctions such as an adverse inference jury instruction.

In that situation, the date the defendant knew it should preserve evidence will significantly affect the severity of the sanction levied.

And the court will deem the defendant to have known it should preserve evidence as of the date you sent the spoliation letter by certified mail, at the latest.

Top-Ranked Personal Injury Attorneys Who Can Help You Preserve the Evidence Needed to Win Your Claim or Use the Spoliation Doctrine to Punish Those Who Lost the Evidence

You must customize your spoliation letter to the specific evidence you may need to prove your case or gain leverage in settlement negotiations.

These tips and the sample preservation letter are a start.

But resolving your auto accident claim or negotiating a reasonable workers comp settlement takes many steps.

Call now to get started on the path to recovery: 804-251-1620 or 757-810-5614.

We have offices in Richmond, Newport News, Baltimore, Hagerstown, and Cambridge, allowing us to represent you anywhere in Virginia or Maryland.