How to Deal with a Would-Be Spoliator
As subrogation professionals, we see spoliation of evidence typically used as a defense by defendants who claim they did not get a chance to examine certain evidence. But sometimes we face the problem of a third party, sometimes the insured or its public adjuster or sometimes another insurance carrier, that is blocking access to evidence vital to the subrogation investigation. How do we deal with it? Aside from considering the particular problems unique to each individual case, the first step is communication with the would-be spoliator. That person should be made clearly aware of your need to examine the evidence and the consequences for blocking access. At the same time, it is important not to be overly aggressive and risk angering that person to the point of sabotage.
To assure your right of later legal action, if necessary, the common elements to convey are these:
1. you have a potential cause of action involving an item or items of evidence;
2. the would-be spoliator has voluntarily undertaken control over such item(s);
3. you are making a specific request for access to and continued retention of that item(s) of evidence; and
4. denial of that request could result in legal consequences.
The following is a template of a letter that might serve as starting point for those facing this problem:
To Whom it May Concern:
We are the insurance company for Insured Architects, which own the building that caught fire on September 22, 2009. We understand that you are the public adjuster for the tenant that occupied the space where the fire originated. The fire investigator we retained has determined that a certain printer on the premises was in the area of origin. We understand that you have voluntarily undertaken to take custody and control of the printer. As we discussed, the printer may be critical evidence in a potential subrogation claim against the manufacturer of the printer and/or others who may have been aware of problems with the printer or its surrounding parts, depending on what the completed investigation reveals.
We would like to take over the custody and control of the printer for purposes of completing our subrogation investigation. If you are not willing to transfer custody and control to us, we request that you provide our experts access to the printer for further examination at a laboratory facility so that we may complete our subrogation investigation. While we continue to work together to arrange such an inspection, you should continue to take all necessary steps to avoid damaging, modifying, or releasing the printer without providing us at least thirty (30) days written notice with an opportunity to take over custody and control of the printer. It is our hope to avoid legal action for failure to provide access to the printer for this purpose.
Please be sure to contact me regarding this matter as soon as possible.
Sincerely,
Your Name
This tactical advantage was effectively nailed closed (for now) following the court’s decision in the West London Pipeline and Storage Limited v. Total UK Limited (2008). In that case, Total was seeking contribution from a third party (TAV) following the largest peace time explosion in Europe at the Buncefield oil depot in 2006. Relying on the court’s controversial decision in Harcourt –v- Griffin (2007), Total made an application to the court under CPR Part 18 for information and the disclosure of TAV’s insurance information. Total argued that the information was relevant to the issues in dispute and necessary for the efficient management of the case. .jpg)
Although the Total decision has been adopted by most courts in England, the argument that an insurance policy is a private matter between the insured and insurers has not extended to After-The-Event (“ATE”) insurance policies. These are specific policies which some claimants take out to combat the loser pays rule, which is embedded in English litigation. Claimants use ATE policies to cover their liability to pay a Defendant’s legal fees and disbursements, if their case is unsuccessful.
