Handling Physical Evidence

Evidence is necessary to support or defend against claims or lawsuits, and it can take many forms. Often, it is a tangible object.

Evidence is necessary to support or defend against claims or lawsuits, and it can take many forms. Often, it is a tangible object.

To be useful, physical evidence must be preserved, inspected and tested using methods that maintain the evidence and make it available to all interested parties. If evidence is altered or destroyed, making it useless or inadmissible, such evidence is deemed “spoliated.” Parties often cannot use spoliated evidence and their legal positions are thus compromised. This outcome is obviously unfair, particularly if one party has had the benefit of testing the evidence while another is deprived of the opportunity.

Not all jurisdictions have causes of action for spoliation, but all will punish a litigant for spoliation in some fashion.

For example, assume a circuit breaker in an electrical panel fails in a building housing a retail store. The building erupts in flames. An employee is injured jumping out a second-story window to escape. The owner of the property, the injured worker, the manufacturer, distributor and seller of the circuit breaker, and any entities that have serviced the circuit breaker (and all of the insurance carriers involved) are all interested in preserving the circuit breaker. If the building owner keeps the circuit breaker and has it tested and in the process it is disassembled and cleaned, or perhaps lost, all the other parties have been harmed since they were not there to document the condition of the product and at least observe the work, if not direct it themselves. The other parties will always be at a disadvantage in defending themselves in any resulting litigation. This outcome is obviously unfair.

Parties that spoliate evidence are usually penalized. Some states provide that injured parties can sue a spoliator. Not all jurisdictions have causes of action for spoliation, but all will punish a litigant for spoliation in some fashion. At a minimum, spoliation will raise a strong inference that the evidence altered or destroyed was harmful to the offending party.

Key ASTM Standards Pertaining to Litigation

ASTM E 860-97
Standard Practice for Examining and Preparing Items That Are or May Become Involved in Criminal or Civil Litigation

1. Scope
1.1 This practice sets forth guidelines for handling of items that may have been involved in a specific incident that is or is reasonably expected to be the subject of criminal or civil litigation. …

3. Significance and Use
3.1 This practice sets forth the guidelines for the examination and testing of evidence that is, or may become involved in litigation. It outlines procedures to be followed to document the nature, state, or condition of evidence. It also describes specific actions that are required if planned testing, examination, re-examination, disassembly, or other action is likely to alter the nature, state, or condition of the evidence so as to preclude or adversely limit additional examination and testing. …

4. Procedure …
4.2 If proposed tests, examinations, or other actions are likely to alter the nature, state, or condition of the evidence so as to preclude or limit additional examination and testing, the person, firm, or corporation planning to perform the proposed action shall: …
4.2.2 Recommend that its client notify other interested parties of the proposed action described in 4.2, and
4.2.3 Recommend to its client that other interested parties be given the opportunity to participate in the procedures described in 4.1 or to witness and record any such actions. …

ASTM E 1188-05
Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator

1. Scope
1.1 This practice covers guidelines for the collection and preservation of information and physical items by any technical investigator pertaining to an incident that can be reasonably expected to be the subject of litigation. …

3. Significance and Use
3.1 This practice is intended for use by any technical investigator when investigating an incident that can be reasonably expected to be the subject of litigation. The intent is to obtain sufficient information and physical items to discover evidence associated with the incident and to preserve it for later analysis.
3.2 The quality of evidence may change with time, therefore, special effort should be taken to preserve it. This practice sets forth guidelines for the collection and preservation of evidence for further analysis. …

4. Procedure …
4.2 Physical Evidence — Obtain and preserve items as early as possible. Plan the investigation to protect physical evidence significant to the incident. The plan should consider the possibility of identity loss, physical loss, deterioration or destruction of information due to environmental effect, or recovery and collection activities. When physical items cannot be preserved in their found state, document it. …

It is good practice to send copies of the applicable standards to the custodian of any physical evidence, putting him on notice of the standards and informing him that you are relying on his compliance.

The ASTM Standards

Much has been said and written lately concerning the changes to the Federal Rules of Civil Procedure regarding preservation and discovery of electronically stored information (see, e.g., Trust The Leaders, Issue 18). But there are also other standards published by ASTM International, formerly known as the American Society for Testing and Materials, concerning preservation of physical evidence. Anyone who handles or takes custody of physical evidence should be aware of these standards and treat them as minimum applicable standards across all jurisdictions. Compliance with ASTM standards may help shield against negative inferences associated with the handling of physical evidence.

There are six ASTM standards that may apply to parties handling physical evidence. They are:

– E 620 Standard Practice for Reporting Opinions of Scientific or Technical Experts
– E 678 Standard Practice for Evaluation of Technical Data
– E 860 Standard Practice for Examining and Preparing Items That Are or May Become Involved in Criminal or Civil Litigation
– E 1020 Standard Practice of Reporting Incidents That May Involve Criminal or Civil Litigation
– E 1188 Standard Practice for Collection and Preservation of Information and Physical Items by a Technical Investigator
– E 2332 Standard Practice for Investigation and Analysis of Physical Component Failures

For our purposes here, E 860 and E 1188 are the most important.

Language was deleted from the 1982 version of E 860 that excluded changes made to physical evidence during “ordinary service or repair operations.” Now, activities such as those are within the scope of the standard. Therefore, E 860 should be reviewed as part of the ordinary course of preparation for service or repair of equipment, systems and vehicles.

It is good practice to send copies of the applicable standards to the custodian of any physical evidence, putting him on notice of the standards and informing him that you are relying on his compliance. If an opposing party is the custodian of the evidence and does not object or respond, you have an argument that he has undertaken a duty to preserve the evidence separate from any duty he may have in law. If the subject evidence is then lost, altered or destroyed, your position has been protected.

The best approach is to be proactive and let the ASTM standards be your guide. Make sure your employees are briefed on their obligations. For example, sales, parts and service personnel in particular should be educated on ASTM standards and trained to be sensitive to clues that an accident may have happened. Orders for durable parts or goods may be an indication of a failure or an accident. Service orders to repair significant damage due to fire or dynamic failure are almost always indicators that evidence preservation is an issue.

Copies of the complete ASTM standards cited are available at astm.org. The standards change periodically so you should contact counsel when you suspect evidence preservation is, or may become, an issue.

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