By: Izy Lyon
When dealing with a contractor’s faulty work, it is natural to want to begin repairs as soon as possible. However, repairing the work without taking steps to protect your legal claims against your contractor can prevent you from being able to recover anything through the courts.
This is because of the doctrine of “spoliation,” which requires parties to litigation to preserve evidence or face court sanctions. Understanding when and how this duty arises can help you navigate your dispute with your contractor and keep your legal options open.
This article provides practical guidance on recognizing potential spoliation risks and taking proactive steps to avoid them.
Duty to Preserve Evidence
As a general rule, parties who think they might be involved in litigation have a duty to preserve evidence relevant to the subject of the dispute. That means that property owners who might want to sue their contractor for their defective work are required to postpone repairs until the dispute is resolved. If the evidence of the defective work is destroyed, courts may find that your contractor is unable to fairly defend against your claim and decide to dismiss your case in its entirety.
Luckily, there are some exceptions to the rule. Sometimes, the defective work can be so serious that it requires urgent repair. For example, incorrect installation of siding may lead to mold problems, which can have health consequences for the people living or working in the building. In those cases, you may be allowed to make necessary repairs, even if it requires destroying evidence. However, you must follow the requirements laid out by the court before destroying any evidence in order to avoid sanctions.
How to Discharge Your Duty to Preserve
The Utah Court of Appeals has provided a clear framework for how parties can be relieved of their duty to preserve evidence without compromising their case. This framework involves two main components:
First, there needs to be a compelling reason to proceed with repairs, like a health and safety concern. A hit to your curb appeal likely won’t cut it.
Second, you need to provide any potential adverse party, like your contractor, their insurance, etc. with “actual notice” that you intend to make the repairs. Your notice can be in the form of a letter, and must include:
- The anticipated legal claim
- The factual and legal basis for the claim
- A description of the relevant evidence that will be destroyed
- The reason destruction is necessary
- The date on which the destruction will occur, and
- An opportunity for the opposing party to inspect the evidence before and during its destruction
Because this letter plays an important role in preserving your legal claims, you should mail it through a reliable source and confirm that the recipient has received it.
Unfortunately, repairs can’t always wait. By understanding when urgent repairs are justified and properly notifying important parties, you can protect your legal claims and reduce risk of court sanctions.
Izy Lyon
Izy Lyon is a Summer Associate at Ray Quinney & Nebeker P.C. Izy is a rising second-year law student at the University of Utah, where she received the CALI Excellence for the Future Award. She earned her B.A. in Philosophy, magna cum laude, from the University of Montana.
Ray Quinney & Nebeker is the exclusive Utah member firm of the Employment Law Alliance, an international network of independent law firms with established employment law practices. The Employment Law Alliance is the largest and most comprehensive network of employment and labor law attorneys in the world.