Duty To Preserve Evidence

A party to litigation, or to litigation that is reasonably foreseeable, has a duty to preserve evidence in its possession or control that may be relevant. If a party destroys evidence in its custody or control it can be subject to sanctions that range from an assessment of costs and fees, to suppression of evidence, an adverse jury instruction, or even outright dismissal of the case.

The Superior Court recently ruled on a case in which a plaintiff alleged that a malfunctioning refrigerator, which was later destroyed by a nonparty, caused a fire. In that case, the Superior Court reiterated the general rule that, in Massachusetts, a nonparty has no duty to preserve evidence. See Quincy Mut. Ins. Co. v. W.C. Wood Co., Middlesex Superior Court, Civil Action No. 0402346 (June 6, 2007) (Gershengorn, J.). However, an exception to this rule is when a party to the litigation imposes an obligation on the nonparty to retain the evidence.

Specifically, if a party to a litigation wants a nonparty to retain certain evidence, the party must either issue a subpoena to the nonparty requesting the evidence or enter into a contract with the nonparty to maintain the evidence.

Although the case at issue involved product liability (the refrigerator), the court’s holding arguably applies to all evidence. Thus, not only does it apply to products, but it could apply to documents such as contracts, invoices, advertisements, e-mails, or any other evidence that would be relevant to the case.

As a result, if you are a party to a litigation, or even reasonably believe you will be a party to a litigation, and you know a nonparty has evidence that you will need to prove or defend the case, you or your attorney must take affirmative actions to ensure the nonparty has a duty to preserve the evidence.