Spoliation letter

What is a spoliation letter?

A spoliation letter is a formal written demand sent to a party or entity possessing potential evidence, requiring that specific evidence be preserved and not destroyed, altered or lost.

It is typically sent as early as possible after an incident, since much valuable evidence, including video footage and electronic data, is routinely and often automatically overwritten or destroyed within a relatively short period.

Sending this letter promptly is frequently one of the very first substantive steps an attorney takes upon being retained in a potential injury case.

Its importance cannot be overstated in cases involving video, electronic data or physical evidence subject to routine destruction, alteration or disposal.

What evidence commonly requires this kind of preservation demand?

Various categories of evidence are subject to routine destruction or alteration if not specifically preserved through formal demand.

• Surveillance and security camera footage, often overwritten within days or weeks
• Event data recorder information from vehicles
• Electronic logging device data from commercial trucks
• Physical evidence, including a damaged vehicle or a defective product
• Maintenance and inspection logs subject to routine record retention periods
• Internal incident reports and communications

What happens if evidence is destroyed despite the letter?

Courts can impose significant sanctions for spoliation, meaning the destruction of evidence after a genuine duty to preserve it had already arisen.

These sanctions can include an adverse inference instruction, permitting a jury to infer that the destroyed evidence would have been unfavorable to the party that failed to preserve it.

In more severe cases, particularly involving bad faith destruction, courts have imposed even more significant sanctions, including striking certain defenses entirely.

This is precisely why sending the letter promptly matters so much, since it establishes clearly that a preservation duty existed at the time evidence was subsequently lost or destroyed.

Why does timing matter so critically here?

Because much of the most valuable evidence in an injury case, particularly video footage, has an extremely short natural shelf life before routine business practices result in its automatic overwriting or destruction.

A letter sent even a few days too late may arrive after the relevant footage has already been automatically overwritten by routine business system operations, regardless of how promptly the letter itself was actually sent afterward.

This is why contacting an attorney immediately after any potentially significant incident, even before deciding whether to formally pursue a claim, can meaningfully preserve evidence that might otherwise be permanently lost.

Common questions

How quickly should a spoliation letter be sent?

As soon as possible after an incident, ideally within days, since valuable video footage and other electronic evidence is frequently overwritten within a very short period.

Does sending this letter guarantee the evidence will actually be preserved?

It creates a formal legal obligation and a documented record of that obligation, but does not guarantee compliance, which is why prompt sending and, where necessary, prompt follow up both matter.

What can I do if evidence is destroyed despite receiving a preservation letter?

This can support a motion for spoliation sanctions, potentially including an adverse inference instruction or other significant sanctions against the responsible party.