A Bad Way to Lose a Case

Suppose you were hurt in a shipboard or fishing boat accident and have a Jones Act (or Unseaworthiness) claim. You message your girlfriend from the hospital and tell her all about it – there’s a long thread of detailed messages, you telling what happened, maybe saying you were talking to lawyers about it, and answering her questions. A few weeks later you get a new phone and, what do you know, the message thread disappears and cannot be retrieved.

One way to lose an injury case is to delete, or otherwise lose, emails and messages related to your claim. Parties owe a duty to the court to preserve and produce evidence. There are various rules about the point in time a party must begin to preserve evidence, but without doubt a plaintiff (the person bringing the claim) has a duty to preserve evidence beginning at the time the plaintiff realizes he or she has a legal claim.

You knew you had a seaman’s personal injury claim, yet you allowed this valuable evidence to evaporate. What will the court do about it?

The most common punishment is the dreaded adverse inference rule. Simply put, in the face of missing evidence the judge may infer, or assume, that the missing evidence would have been unfavorable to the party that lost the evidence. If the case is being decided by a jury, the judge can instruct the jury the same way. Using the facts outlined above, the judge might tell the jury something like this:

“If you find that the plaintiff intentionally destroyed or failed to preserve his phone messages, when he knew or should have known the messages would be evidence in this case, you may infer, but are not required to infer, that this evidence was unfavorable to the plaintiff.”

Suppose the defendant claims that you got hurt only because you disobeyed orders. That lost evidence instruction allows the defendant to argue to the jury that you intentionally destroyed the messages because in the messages you probably admitted that you messed up, that you were careless and disobeyed orders, and that that’s why you got hurt.

But what if you really did get a new phone, and you didn’t know about the duty to preserve evidence, and anyway you don’t even know how to back up messages from one phone to another? Just a few years ago that excuse might have worked. In today’s world, however, courts assume that (1) everyone bringing a case knows about the duty to preserve evidence and (2) everyone knows how to back up data – or can find someone to do it for them.

So, no excuses anymore.

Don’t lose your Jones Act case this way. If you are hurt and have a claim, preserve the evidence. Preserve the emails, the phone messages, the Facebook posts, the bloody pants, the photo that other guy took that he sends it to you – everything.

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