NH Construction Law
  • Home
  • Blog
  • Links

#93:  Spoliation During Construction

9/5/2020

0 Comments

 
Parties to a lawsuit, or who reasonably should anticipate future litigation, have a duty not to destroy evidence crucial to their opponents’ claims or defenses.  Intentionally destroying material evidence to the prejudice of an opponent – called “spoliation” – can result in imposition of sanctions by the court, ranging from adverse inferences to preclusion of expert testimony to outright dismissal of a case.  The duty to preserve material evidence extends not just to documents and records, but also to physical items (for instance, in a products liability case the defective product itself).
 
But what about a building under construction?  Must an owner whose contractor abandons or is terminated from a project await a lawsuit before implementing the repairs that will destroy the evidence of defective work?  Compared to suspending routine document destruction programs or storing an offending product, putting construction on hold to avoid altering or destroying deficient work (or dismantling temporary accessories like scaffolding, shoring or cribbing) may place an unreasonable financial burden on the owner.  Courts understand this, and make allowances for it.  Miller v. Lankow, 801 N.W.2d 120, 128 (Minn. 2011) (“A rule that too broadly forbids a custodial party from making repairs or remediating damage when such repair or remediation is necessary may be both unfair and impractical . . . [W]e conclude that the duty to preserve evidence must be tempered by allowing custodial parties to dispose of or remediate evidence when the situation reasonably requires it.”).
 
Fortunately, the duty to preserve relevant evidence may be satisfied by affording the adverse party an adequate opportunity to inspect it prior to destruction.  American Family Mutual Insurance Co. v. Golke, 319 Wis.2d 397, 768 N.W.2d 729, 737 (2009) (“a party or potential litigant may discharge its duty by giving the other side notice of a potential claim and a full and fair opportunity to inspect relevant evidence”).  Indeed, upon being notified of a claimed defect that could lead to litigation, the party alleged to be responsible may have some duty to affirmatively seek an inspection.  Miller v. Lankow, 801 N.W.2d at 130-31 (“[W]hen a party has sufficient knowledge to protect its interests and nevertheless does nothing, it is inappropriate to sanction the custodial party.”);  Aktas v. JMC Development Co., Inc., 877 F.Supp.2d 1, 13 (N.D.N.Y. 2012) (“When a party fails to request an inspection of the evidence after being notified of its existence, spoliation sanctions are not appropriate.”).  In the residential setting, New Hampshire’s opportunity to repair statute, RSA 359-G:4, comes into play here.  If a homeowner gives the contemplated statutory notice of a claimed defect to the contractor, who then declines to exercise his statutory right to request inspection, a later spoliation defense premised on lack of opportunity to inspect will be a tough sell.
 
While some states impose sanctions even for negligent spoliation, in New Hampshire “the general rule [is] that an adverse inference — that the missing evidence would have been unfavorable — can be drawn only when the evidence was destroyed deliberately with a fraudulent intent.”  Murray v. Developmental Services of Sullivan County, 149 N.H. 264, 271 (2003).   Inferring a subjective purpose of the spoliator to deprive an opponent of evidence can be challenging in construction settings.  In a Massachusetts Superior Court case, 333 Massachusetts Avenue Limited Partnership v. The Architectural Team, Inc., No. 06-4630-BLS2 (December 7, 2010), the defendants sought sanctions for plaintiffs’ spoliation of allegedly leaking facades of a building, claiming that “both before and during the course of this litigation, remediated, repaired and altered the very components of the building facade and the Defendants’ work allegedly involved in the claimed leaks, without notifying the Defendants or preserving evidence as they are duty-bound to do.”  The Court denied the request, concluding that “plaintiffs’ intent was not spoliation of evidence, but rather addressing failing facade components as circumstances required.”
 
Even if an invited inspection is declined by the contractor, the wise owner will thoroughly photograph or video any potentially defective workmanship before it is altered – and if a lawsuit results, share that evidence with her opponent.  Chances are it will be useful, perhaps even necessary, in order to prove the owner’s case in court anyway.

0 Comments



Leave a Reply.

    Author

    Frank Spinella

    Archives

    April 2025
    March 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    April 2024
    March 2024
    February 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    January 2019
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014

    Categories

    All

    RSS Feed

Proudly powered by Weebly