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, 768 N.W.2d 729, 737 (Wis. 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.