A version of Private Investigator Steven Mason’s article first appeared in Pursuit Magazine.
Disclaimer: The author is not an attorney, and the information contained within this article should not be construed as legal advice.
The goal of all private investigations is to locate and collect information and evidence. For private investigators who work on complex civil litigation and criminal defense cases, preserving evidence that has yet to be uncovered is critical for success.
TIME IS OF THE ESSENCE
In an article I wrote in 2017, “Evidence Expires ,” I explained that hiring a private investigator in the early stages of criminal and civil cases promotes the best chance of success for clients. Many times, the successful collection (or lack of collection) of evidence determines case outcomes.
The window of opportunity to locate and preserve evidence closes quickly. During the course of routine business practices, evidence such as surveillance video, text messages, emails, records, etc., are easily and often destroyed. While some of these actions are intended to obscure evidence, others are more benign in nature; they happen as a matter of course. Regardless, there are steps that a private investigator can take to help prevent the intentional or unintentional destruction of evidence.
At the start of an investigation, the private investigator and client should review all available information and create a list of potential evidence not yet collected. After the list has been created, preservation/spoliation letters should be prepared and served upon the party(s) in possession of the evidence.
What exactly is a preservation/spoliation letter? A preservation/spoliation letter is a notice served upon an individual or entity possession evidence, requesting that the specified evidence be preserved so that it will be readily available upon receipt of a subsequent subpoena or court order. It further requests that the possessor take reasonable steps to prevent the intentional or unintentional destruction of the evidence.
This is a critical step and should be completed immediately, regardless of whether subpoenas or court orders will be sought later. Remember, the goal is to prevent intentional or unintentional destruction. Subpoenas take time to obtain and process through legal departments. As the minutes tick by, there is ample opportunity for evidence loss.
Preparing preservation/spoliation letters is not complicated. I highly recommend that private investigators keep letter templates on file and readily available when conducting canvasses. During a canvass, if evidence is discovered but not made available to the investigator, the investigator can easily write in the name of the individual or entity in possession of or access to the evidence, identify the specific evidence being sought, and immediately serve the individual or entity with the letter.
The notice should be on letterhead (the private investigator’s letterhead or the lar firm’s letterhead) and contain the following sections.
- The date of the request and the identity of the individual or entity being served.
- An outline of the nature of the incident under investigation and the specific evidence being sought.
Example: “Our agency has been retained by the ABC Law Firm in regard to a motor vehicle crash that occurred on January 1, 2022. We are requesting that you preserve all video captured by your exterior surveillance cameras between 1:00pm and 1:30pm on January 1, 2022. This video is important evidence in a civil investigation.”
- A statement of good faith.
Example: “This request is being made in good faith in anticipation of civil litigation before the Maricopa County Superior Court.”
- The preservation demand. The section clarifies the preservation instructions and outlines the means to avoid destruction of the evidence.
Example: “In anticipation of subpoenas being issued under the authority of the Maricopa County Superior Court, I am requesting that (insert name or entity) not erase, record over, or alter this video evidence in any way, and segregate and preserve it in order to prevent its deletion or destruction due to a deliberate act, or as a result of backup-tape rotation, electronic data shredding, drive re-imaging, the sale or destruction of computer systems, disk defragmentation, or routine computer maintenance.”
- Request for communication of the retention obligation to others. In order to ensure preservation, all parties with access to the evidence must be notified and kept accountable until the evidence has been procured or becomes irrelevant.
Example: “I request that you communicate retention obligations to all persons in the organization, or in control of the organization, who may have access to this evidence, and that you periodically issue reminder notices to them that the notice is still in effect (until otherwise advised).”
- Contact information for whoever will be assigned to answer questions about the preservation request.
- Instructions on how the evidence can be turned over, should the individual or entity elect to do so prior to receiving process from the Court.
While a preservation/spoliation letter doesn’t guarantee that the evidence won’t be destroyed, an attorney may later be able to make a claim of spoliation or ask that a Willits Instruction be provided by the judge. Both are game changers for your client because they’ll allow the Court to infer that the evidence was in your client’s favor.
Litigation is won and lost based upon evidence. Identifying critical evidence in the early stages of litigation and preserving said evidence should always be the primary goal of private investigators. Serving preservation/spoilation letters is an important first step to ensure that evidence will be available later. Should the evidence be destroyed, either intentionally or unintentionally, possessing documentation that preservation notices were provided will assist in setting the stage for a legal challenge.