A plaintiff is injured when a tire and a wheel from another vehicle crashes through her windshield. The vehicle that lost the tire had been customized with "deep dish mag wheels" and is towed back to the dealer who sold it. Although the dealer agrees to keep the vehicle/evidence for examination by the plaintiffs experts, the car is ultimately "lost" or "destroyed" and the plaintiff - who is permanently blind as a result of the accident - is left with no evidence to pursue her claim. This example of spoliation - the loss, destruction or material alteration of evidence - was part of a 1984 landmark California case, Smith v. Superior Court in which the California Court of Appears recognized for the first time, intentional spoliation as a tort.

A 2001 L.A. Times article (Evidence Storage Overwhelming Courts, 10/26/01) stated that evidence from homicide investigations is being stored in an old department store basement with mannequins representing murder victims mixed in with weapons and other evidence from more than 15,000 civil and criminal trials per year. According to the article, California courts are no longer accepting bulky evidence items and in some cases photographs replace actual physical evidence. This alarming lack of storage and control is increasing the risk of spoliation of evidence and is compounded by a growing trend among U.S. courts in recognizing the tort of spoliation. In some states, intentional spoliation of evidence is recognized as a tort.

In others, such as California, the decision has been reversed. Nonetheless, plaintiff's right to a fair trial and access to crucial evidence continues to be enforced through the use of sanctions and statutes. Therefore it is fundamentally important to document and understand the value in logging, tracking, storing and monitoring the evidence and chain of custody throughout the legal process.

Generally, spoliation has been accepted as a frustrating yet somewhat anticipated part of the practice of law. While the impact of spoliation on a given case could be significant, historica11y, in California, no remedies had existed enabling attorneys to challenge the impact of lost evidence on their cases.

However, in 1984 in the case of Smith v. Superior Court the California Court of Appeals recognized intentional spoliation as a tort.

The existence of this new theory affected how evidence was handled and the chain of custody in civil and criminal cases. In Smith, (the case referenced in the opening paragraph) the plaintiff a11eged that the defendant had intentionally spoliated the evidence that was to be the basis for a lawsuit. The vehicle that lost the tire was towed back to the dealer who sold it and although the dealer agreed to keep the vehicle/ evidence for examination by the plaintiff's experts, the car was ultimately lost or destroyed. Eventually, based on California's recognition that, "for every wrong there is a remedy," the court officially recognized the tort of intentional spoliation, finding that the dealer had a financial interest in ensuring that the evidence was lost. Alaska, Florida and Illinois soon followed California's ruling and the trend towards recognizing spoliation, both intentional and negligent, (Velasco v. Commercial Building Maintenance Company, CA, 1985 169 Cal. App. 3d 874, 215 Cal. Rptr. 504) began.

The California Supreme Court recently scaled back the holding of Smith and eliminated continued as intentional spoliation claims, in Cedars-Sinai Medical Center v. Superior Court concluding that, "it is preferable to rely on existing non-tort remedies rather than creating a tort remedy." Despite this reversal, California courts still find that there are significant sanctions and remedies for litigation-related misconduct and intentional mishandling of evidence. Other states continue to recognize causes of action for spoliation, even adopting the independent tort of spoliation or recognizing the tort in one form or another.

What Must Be Protected?

In addition to the more traditional types of physical evidence such as wrecked cars and weapons, developments in science and technology enable law enforcement and criminal investigators to find new forms of evidence in places never before imagined, such as fibers, tire treads, clothing and other organic materials, thereby not only creating new opportunities for spoliation of evidence but also the need for stringent procedures to protect against loss or destruction of a wide array of potentially crucial evidence.

To date, courts have held that spoliation occurred when "crucial" evidence was destroyed or altered. (Fire Ins. Exch. v. Zenith Radio Corporation, 103 Nev. 648, 747 P 2d 911 Nevada, 1987). Notable examples of crucial evidence have included an exploding heater, a burning television set, an improperly working seatbelt and even the cabin of the infamous Unabomber. If the item is the focus of an investigation or litigation it is considered crucial evidence and, "even where an action has not been commenced and there is only potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action." (Fire Ins. Exch. v. Zenith). If even a part is altered or destroyed the evidence can be considered spoliated.

The Growing Impact of DNA Evidence

In addition to physical evidence, the growing field of DNA testing is making it possible to re-test evidence and declare people, long thought guilty, innocent on the basis of simple blood analysis years after cases are considered closed. Policy and laws such as those recently passed in California extending the amount of time required to preserve DNA evidence from some sex crimes (from six to ten years) contributes to the need to impose guidelines to protect against spoliation and ensure proper evidence storage. The pioneering work of organizations like The Innocence Project, which to date has helped free more than 100 wrongly convicted death row inmates, and the newly launched FBI crime lab and its national database with more than 1.4 million DNA samples, are helping build credibility for the importance of DNA testing while underscoring the need to ensure that crime scenes are properly secured and evidence is securely stored.

However, mounting evidence resulting from scientific developments present challenges for law enforcement agencies.

In 2002, in Los Angeles alone, it was documented that the Los Angeles Police Department inadvertently disposed of over 1,000 evidence samples that may have contained DNA. As defense attorneys and police departments rely more heavily on DNA evidence in criminal cases, law enforcement officials are facing an even greater problem - where to store the evidence.

Additional challenges associated with preserving DNA evidence include the need to transport evidence at room temperature, preventing sample storage in plastic bags or heated spaces as well as where and when DNA should be sent for trace or forensic analysis. As reliance on DNA and forensic evidence grows, the need for state-of-the-art storage facilities with knowledgeable experts aware of these and other issues will be of huge importance as a means to avoid spoliation, particularly given the limited resources faced by government agencies.

Who Is Liable?

A spoliation claim begins by determining whether a party has a duty to preserve evidence. Court rulings throughout the U.S. have found that duty to preserve evidence may exist as the result of statutes, sanctions due to misconduct related to handling of evidence, contracts between the insured and their insurance companies and even the standard of "foreseeability" of the role of evidence in potential litigation (Solano v. Delancey et al., 264 Cal. Rptr. 721 1989). Other factors affecting a duty to preserve evidence include rules and conduct governing attorneys and parties who "voluntarily" agree to protect evidence (Smith). Increasingly, the duty to preserve evidence may also be inferred through local standards and practices such as pending guidelines regarding collection and preservation of forensic evidence from the National Center of Forensic Science as well as acceptable standards by law enforcement agencies.

The Chain of Custody

To protect against spoliation, four key areas of exposure should be considered: 1) the accident/investigation site; 2) transport to the storage facility; 3) custody at the storage facility; and 4) access by the experts. This Chain of Custody refers to the continuum oftime trom the moment the evidence is identified and collected until the moment it is ultimately destroyed and disposed of. Persons liable in the chain of custody and who have a duty to preserve evidence include litigants, attorneys, claims adjusters, insured's, insurance company representatives, law enforcement officials, and experts. The scene of a crime or civil action including written documents - must be preserved as soon as litigation is anticipated or foreseen. (County of Solano v. Delancy, et al., 264 Cal. Rptr. 721 1989). Legal responsibility to protect evidence is not excused due to negligence ofthe salvage operator or transporter of evidence (Jones v. Goodyear Tire & Rubber Co. 966 F 2d 220 [7th Cir.1992]). Indeed, meticulous steps in protecting evidence are recommended:

Securing the Investigation Site and Transport

Most spoliation occurs upon initial transfer of evidence from the investigation site to the storage facility. Therefore, the more evidence that can be securely identified, logged and sealed prior to transportation the greater likelihood that it will remain preserved correctly. Upon arrival at the investigation site, those with a duty to preserve evidence should:

• Secure the site; ensure only officials with appropriate documentation are on the site for investigation.

• Photograph the investigation site prior to and following departure of experts and investigators.

• Take head and shoulder shots of all vendors including those who will be transporting the evidence. Collect addresses, phone numbers and social security numbers in the event they leave their jobs prior to trial beginning.

Custody at the Storage Facility

Scientific developments, changes in legal policy and trends towards recognizing spoliation theories are putting serious demands on evidence storage facilities. One of the greatest challenges faced by professionals involved in the chain of custody, and those who are liable for preserving evidence, is the need to train and educate storage facility owners - many of whom began storing evidence by default, as original managers of auto and metal yards and not as a result of specific expertise and knowledge. To ensure protection of your evidence and avoid spoliation the following tips are recommended:

• Take inventory of and photograph your evidence; determine if all of the pieces arrived safely or if anything was lost or stolen and review the log of items put together at the original investigation site, prior to locking them into a storage facility.

• If there is a discrepancy between your inventory upon arrival at the storage facility and departure from the accident scene, resolve it immediately. If you discover that a portion of the wreckage or evidence is missing or damaged, put the insured and any potential claimants on notice to trigger the running of the statute of limitations, which in California is two years for a cause of action for spoliation.

• Establish the following protocol for maintaining your evidence:

• Insist that access be controlled by a secure, locked area.
• Obtain photo identification of everyone who has a key or combination lock access to the storage area.
• Take and retain photographs of crucial evidence at each step in the chain of custody.
• Demand sign-in/sign-out logs for every access to the evidence, regardless of whether it's by an expert, visitor or facility employee.
• Insist that your evidence be stored in an isolated area or container. In cases where you are storing wreckage from an accident you would be surprised at the number of potential spoliation incidents, which have occurred as a result of intermingling of parts from separate wrecks.
• If possible, insist that wreckage be stored in locked, weatherproof storage container to avoid deterioration caused by exposure, as it can constitute a "material alteration."

Be cautious about pre-litigation examination by experts. While exams can be helpful in an effort to eliminate any causation between an alleged product defect and the accident, there is a greater risk of accidentally i.e., negligently spoliating evidence and thus creating a cause of action for litigation where one might not otherwise exist. In order to allow both parties equal opportunity for inspection, courts in Illinois and Massachusetts have required that an expert may not deliberately or negligently put himself in the position of being the only expert with first-hand knowledge of the evidence in dispute. (Marroco v. General Motors Corp., 966 F 2d 220 (7th Cir. 1992))

Once litigation commences, insurers should request that defense counsel obtain a protective order, signed by all parties and the court, that sets forth the protocol with respect to any inspections or testing of physical evidence. The protective order also requires that every party be given notice prior to examination of evidence. In addition, aside from providing an added degree of protection with respect to preservation of evidence, the protective order sets the stage for obtaining dismissal of the action or a directed verdict in the event that an adverse party breaches the protective order.

Ensuring The Integrity of Your Evidence

Avoiding spoliation and preserving the integrity of your evidence requires forethought and a commitment to a process and partnership with the vendors who transport and secure, store and monitor access to your evidence. As a link in the Chain of Custody, i.e., a person with a duty to preserve and protect evidence or someone with a vested interest in the outcome of the litigation, it is essential that from the moment the criminal or civil event occurs you identify, track and log movement of your evidence. The crisis in available storage space for evidence of all types at government facilities, compounded by increasing judicial recognition of the impact of spoliation of evidence demands that attorneys and the courts consider viable alternatives for transporting and storing evidence to preserve the integrity of the judicial process and the rights to a fair trial based on clean evidence.

Randy L. Turtle is president of SafeStore, Inc., a national secure storage facility owned and operated by attorneys who specialize in management of evidence, and an expert on the topic of spoliation. For more information about SafeStore, Inc. go www.safestoreusa.com or call 310-314-2486.