The following article was originally published in the HCBA Magazine, The Lawyer, September – October 2012.
From moldy lunch boxes to deformed 2x4s, determining what paper, electronic data, materials, tools, and equipment might be relevant to a pending construction-related claim, and require preservation, is a daunting task. The problem is compounded once construction is completed and the project is turned over to the owner while a claim related to the project is pending (or in some instances, contemplated). In the midst of cleaning the job site, evidence related to the claim can oftentimes be discarded and forever lost.
The High Hurdle To A Spoliation Claim: Is The Evidence Crucial?