When construction disputes arise, your first instinct may be to repair any defects immediately. However, acting too quickly can lead to unintended legal consequences. This issue, known as spoliation of evidence, occurs when evidence critical to a lawsuit is altered, destroyed, or otherwise not preserved. For homeowners and contractors, understanding spoliation is essential to protecting your interests and avoiding costly penalties in construction litigation.

This article explains what spoliation is, its legal implications, and practical steps to help prevent spoliation claims.

What is Spoliation?

Spoliation refers to the intentional or negligent destruction, alteration, or failure to preserve evidence that may be relevant to a potential or ongoing lawsuit. In construction disputes, this often occurs when a defect, such as faulty wiring, a leaky roof, or structural damage, is repaired before all parties have had an opportunity to inspect it.

Courts take spoliation seriously because it can unfairly disadvantage one party, preventing them from fully defending against a claim or proving their case because evidence that may prove or disprove liability no longer exists.  For example, if a homeowner hires a new contractor to fix a defect before the original contractor can examine it, the original contractor may argue that the evidence that there work was performed in a good and workmanlike manner was destroyed before they had the opportunity to document its status and have their own expert form an opinion on the quality of the work, the necessity of a repair, and/or the appropriate remedy thereby making it harder for them to defend against a lawsuit.

Legal Consequences of Spoliation

Spoliation can have significant consequences in construction litigation, including:

• Adverse Inference: A court may instruct a jury to assume the destroyed evidence would have been unfavorable to the party responsible for its destruction.
• Sanctions: Courts may impose monetary penalties or exclude critical evidence from use at trial.
• Dismissal of Claims: In extreme cases, a court may dismiss a defect claim entirely if spoliation causes significant prejudice to the other party.
• Additional Liability: In some states, parties may face separate legal claims for spoliation, especially if a third party (e.g., an insurer) destroys evidence.

These outcomes can jeopardize your ability to recover damages or defend against claims, making it critical to handle any potential evidence carefully.

When Does the Duty to Preserve Evidence Begin?

The duty to preserve evidence arises when litigation is reasonably foreseeable. This may occur when you receive a demand letter, a significant defect is discovered, a payment dispute arises, or you become aware of similar disputes in the industry. When in doubt, consult legal counsel to ensure proper evidence preservation and compliance with state-specific spoliation laws.

Considerations for Homeowners

Homeowners often feel pressure to fix construction defects quickly to protect their property or ensure safety. However, acting too hastily can lead to a spoliation claim. Thus, homeowners should consider the following:

• Avoid Hasty Repairs: While the urge to fix a problem quickly is understandable, pause to assess the situation. If litigation seems likely, prioritize evidence preservation over immediate repairs unless safety is at risk.
• Notify all Relevant Parties: Before making repairs, notify contractors, subcontractors, insurers or other stakeholders. To ensure proof that you are acting in good faith, provide a detailed, documented notice and allow a reasonable time for inspection.
• Document Everything: If urgent repairs are necessary, take timestamped photographs, videos, and notes of the defect beforehand. While some courts may not consider such documentation a full substitute for physical evidence, comprehensive records can strengthen your case and minimize the risk of a spoliation claim.

By taking these steps, homeowners can balance the need to fix urgent issues with their responsibility to preserve evidence for future litigation.

Considerations for Contractors

Contractors face unique challenges, as contractual obligations may require prompt repairs to meet schedules or warranty terms. However, premature repairs can lead to spoliation claims; thus, some best practices include:

• Pause and Assess: If a defect is discovered, evaluate whether litigation is foreseeable. This is especially true if payment is being withheld or a formal complaint has been made.
• Conduct Prompt Inspections: Upon receiving notice of a potential defect, contractors should inspect the defect thoroughly and notify the claimant in writing to delay repairs until the inspection is complete. Contractors should also share this notice with relevant third parties, such as subcontractors, material suppliers, and insurers.
• Document the Defect: Before any repairs, document the defect with timestamped photos, videos, and measurements. Include detailed descriptions to establish a reliable evidentiary record.

Conclusion

Spoliation of evidence can escalate a straightforward construction dispute into a costly legal battle. By understanding the concept of spoliation and taking proactive steps to avoid it, both homeowners and contractors can protect their interests, preserve their legal rights, and navigate disputes with greater confidence.

For questions about avoiding spoliation and safeguarding your legal position in construction disputes, please contact any member of our Construction Industry Practice Group.

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}