Issues of Interest to Chicago's business community
Shipley Law Group maintains its legal service edge by keeping up with emerging trends in Illinois business law. We offer our "Issues of Interest" page so that you, our clients, can stay ahead of the trends with us.
The following describes the emerging trend toward evidence preservation. Evidence preservation may prove to significantly affect your settlements and trial outcomes with respect to insurance claims. Pre-litigation evidence handling is likely to become an issue that directly affects you. And it is one of the things we want you to know.
Spoliation of evidence
The Graves v. Daley case involved removal and destruction of a home furnace which had been fully investigated by the fire marshal and homeowner's insurance company. No suit had been filed when the fire debris was removed, so no court order requiring preservation was in place. Nonetheless, the product liability defendant manufacturer and installers successfully argued that their inability to inspect the furnace prejudiced their defense, and were granted a discovery sanction barring all evidence regarding the condition of the furnace.
The issue was first ruled upon by the Illinois Appellate Court in 1988 in Graves v. Daley, 172 Ill.App.3d 35, 526 N.E.2d 679, but had not received Supreme Court attention until ten years later. The courts have since increasingly affirmed a duty of a potential litigant-plaintiff, defendant, or participant in any action to preserve evidence for adequate inspection. As a result, critical decisions regarding inspection and preservation of evidence must be taken at the outset of claims investigation. Insured parties must be made aware of their responsibilities to preserve evidence.
In agreement with appellate courts, the Illinois Supreme Court finds that the Graves v. Daley ruling properly interpreted litigant's responsibilities to "take reasonable measures to preserve the integrity of relevant and material evidence."
Factors to be applied by the trial judge when considering imposition of discovery sanctions include:
- surprise to the adverse party
- prejudicial effect
- the nature of the evidence
- diligence of the adverse party seeking discovery
- the timeliness of the adverse party's objection to the evidence
- good faith of the party offering the evidence
Extending the duty to preserve evidence, Illinois courts now allow claims that violation of that duty can support a negligence action on the ground of spoliation.
Analysis
Failure to preserve evidence can expose insured parties to a troublesome range of problems in the litigation process. With less preservation, more problems become bigger issues to courts. In many cases, giving notice to all participants of evidence inspection and testing can provide strong immunity from judicial sanctions.
Illinois courts now seem ready and willing to uphold a full range of sanctions, including obliterating an employer's third-party contribution protection.
Claim investigation recommendations
Whether your client is a potential plaintiff, defendant, or third-party contribution party, from our perspective as trial and appellate counsel we are of the opinion that under Illinois law, the client must be clearly and immediately instructed at the initial claim investigation stage regarding the need to preserve evidence. This may raise questions of practicality, particularly for situations involving investigations or orders by legal authorities, equipment or facilities that are intended to be returned to use after repair or renovation, or possible long-term storage while litigation remains viable.
Legal solutions for Chicago's future with Shipley Law Group
Our clients trust us to make legal sense out of every business process from Chicago's Loop to emerging business capitals throughout the state of Illinois. Write, call, or visit us for legal consultation that steers you clear from legal confrontation. Click to our contact page, call 312-527-4545, or travel to our Chicago Loop office—100 West Monroe Street, Chicago, Illinois 60603. For immediate attention, send an email to robert.shipley@shipleylawgroup.com.
