What Is a Preservation of Evidence Letter?

If you are in an accident or sustain an injury because of another party’s negligence, you can file a personal injury claim against that party and pursue compensation for your losses. Of course, you have to prove your claim with evidence. 

While the party you have filed against is obliged to preserve existing evidence that a reasonable person in their position would see as relevant to the case, sometimes, evidence “gets lost,” is erased, or otherwise disappears. The loss of that evidence could hurt the success of your case. To prevent evidence from disappearing, an Atlanta personal injury attorney from John Foy & Associates can prepare and send a “preservation of evidence” letter to the at-fault party on your behalf.

What a Preservation of Evidence Letter Does

A preservation of evidence letter can also be called a “litigation hold notice” or “litigation hold letter.” Whatever the label, the letter serves an important purpose.

This communication, sent by your attorney to the at-fault party (the defendant), is a written request to protect and keep any case-relevant evidence the defendant may have. 

Ultimately, the letter works to keep things fair. No defendant wants to keep or reveal evidence that works against them, but destroying that evidence prevents justice from being served.

When to Send a Preservation of Evidence Letter

It is best to send evidence preservation letters as soon as possible after your accident. The more time passes, the more opportunity exists for evidence to get lost or destroyed. In fact, you and your attorney can send the letter even before filing your official claim.

Who Should Receive the Preservation of Evidence Letter

The preservation of evidence letter should be sent directly to the defendant and “cc’d” to their insurance company and legal representatives. It is important to keep a copy of the letter, which your attorney will do, so you have proof it was sent and received. For proof of receipt, you can send the letter through certified mail with a return receipt requested. 

Information to Include in a Litigation Hold Letter

The team at John Foy & Associates has plenty of experience drafting and sending preservation of evidence letters and will include all required content while tailoring the letter to your specific case. General information provided in the letter includes:

• A notice of pending litigation. This is a statement asserting that you, the injured party, plan to pursue a lawsuit
• An explanation of your complaint against the defendant
• The reason for the preservation of evidence request supported by facts
• The specific types of evidence the defendant has that you want preserved
• A request for identifying information on specific individuals who hold evidence relevant to the case, and the names of those responsible for preserving that evidence
• The dates surrounding evidence you want protected. For example, you may want video footage from the date and time your accident occurred, or emails from a certain date range

Types of Evidence You May Want to Preserve

Any type of information that supports your claim is evidence you want to preserve. Depending on the details of your case, that evidence may include:

• Photo or video footage, possibly from security, traffic, or other cameras
• Documents, such as contracts or reports
• Logs and other records, perhaps of vehicle inspection or driver evaluations, from the time period surrounding your accident
• Electronically stored information, such as “black box data” from a truck accident
• Employee manuals or evaluations
• Emails containing information relevant to your claim

An experienced personal injury attorney knows how to prepare a thorough letter, ensuring that even evidence you might not yet be aware of is protected.

Georgia Laws Regarding Preservation of Evidence Letters

Georgia law refers to the destruction, or lack of preservation, of evidence relevant to a case outcome, “spoliation.” When injured parties believe a defendant is guilty of spoliation, they can request the court to “sanction” the defendant. The court will consider several factors to determine guilt.

Defendants are required to preserve evidence if they have been given actual notice of a claim or have constructive knowledge of a claim. Having “constructive knowledge” means the defendant “should have known” or can reasonably presume an impending lawsuit. Under the Georgia Supreme Court decision in Phillips vs. Harmon, a variety of factors must be considered when determining whether a defendant had constructive knowledge, including:

• The type of injury the plaintiff suffered and its severity
• The clarity of the defendant’s level of fault
• The potential financial compensation the defendant could be responsible for providing
• The relationship between the parties involved (if relevant), and any previous incidents or litigation
• How often claims are filed under similar circumstances

If the court determines sanctions are warranted, they may issue a fine, a contempt citation, or issue special instructions to the jury informing them that evidence that would have supported the plaintiff’s claim had been destroyed.

Sending a Preservation of Evidence Letter Helps Your Case

Victims of accidents, especially those without a legal background, may not have ever heard of a preservation of evidence letter. For this reason and many others, it is essential to partner with a personal injury lawyer as soon as possible after an accident.

One of your lawyer’s first orders of business will be to prepare and send this letter, a pre-litigation strategy that will support your case immensely.

Sending that letter promptly legally obligates the defendant to save evidence that can prove your claim. And, if they destroy evidence after receiving the letter, they can experience penalties in court that move a jury to see the defendant’s fault. Your lawyer will also be certain to send the letter to the appropriate parties and custom-detail the letter to your case.

Preserve Evidence to Support Your Case

If you have been harmed by someone else’s negligence and are entitled to compensation, do not risk losing your case because of lost evidence. Contact the personal injury team at John Foy & Associates right away. Your attorney will send the defendant and their representatives a preservation of evidence letter immediately, so the evidence you need will be protected and available as your attorney builds your case.