Spoliation in Michigan: Preserving Evidence and Sanctions
Cases are won and lost on proof, and proof has a way of disappearing. The damaged vehicle is repaired or scrapped, the surveillance footage is recorded over, the defective part is thrown away, the text messages are deleted. When evidence that mattered is gone because someone failed to preserve it, Michigan law has a name for the problem and a set of consequences. This guide explains the duty to preserve evidence, what spoliation is, the sanctions a court can impose, and the practical steps that protect your claim before anything is lost.
What Spoliation Means
Spoliation is the loss, destruction, or material alteration of evidence that is relevant to a claim. It does not require bad intent. Evidence can be spoiled by a deliberate act, but far more often it is lost through carelessness, a routine document-retention policy, or simply letting a vehicle go to salvage before anyone inspects it. What matters is whether the evidence was relevant, whether a party had a duty to preserve it, and whether its loss has unfairly handicapped the other side.
The Duty to Preserve Starts Early
A common and costly misconception is that the obligation to keep evidence begins only after a lawsuit is filed. Michigan law is clearer and stricter than that. In Brenner v Kolk, 226 Mich App 149 (1997), the Court of Appeals held that even when an action has not been commenced and there is only the potential for litigation, a party is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action. The trigger is the reasonable anticipation of a dispute, not the filing of a complaint.
The Sanctions a Court Can Impose
When evidence has been spoiled, the trial court has broad discretion to craft a remedy. The guiding principle from Brenner is that the court must fashion a sanction that denies the offending party the fruits of its misconduct, while not interfering with that party’s right to produce other relevant evidence. In practice, the response is scaled to the severity of the loss and the level of fault.
| Sanction | When a court may use it |
|---|---|
| Adverse-inference jury instruction | Tells the jury it may infer that the missing evidence would have been unfavorable to the party that lost it |
| Exclusion of evidence or testimony | Bars the spoiling party from offering proof or expert opinion that the lost item would have rebutted |
| Dismissal or default | Reserved for the most serious, often willful, destruction that leaves the other side unable to make its case |
| Costs and fees | Where a court rule or order supplies the basis, shifts some of the expense caused by the loss onto the responsible party. Fee-shifting is not automatic |
When a Jury May Infer the Evidence Was Unfavorable
The adverse-inference instruction is the sanction injured people ask about most, because it can turn a missing piece of evidence into a point in their favor. Michigan courts allow a fact finder to infer that evidence a party failed to produce would have been adverse to that party when three conditions are met: the evidence was under the party’s control and could have been produced, the party lacks a reasonable excuse for not producing it, and the evidence is material rather than merely cumulative and not equally available to the other side. This is a permissive inference, not a mandatory presumption. The jury is allowed to draw it but is never required to, and the instruction does not decide the case by itself; it simply lets the jury weigh the absence of proof against the party who allowed it to vanish.
The Michigan Court of Appeals affirmed exactly this kind of instruction in Pugno v Blue Harvest Farms LLC, 326 Mich App 1 (2018), where the defendant’s failure to preserve the pallets at issue permitted the jury to infer that the missing evidence would have been unfavorable once the jury rejected the defendant’s excuse for discarding them. Brenner supplies the broader inherent-authority framework for spoliation sanctions, and Pugno shows the permissive adverse-inference instruction working in a real injury verdict.
Protecting Your Own Evidence After a Crash or Injury
The duty to preserve runs both ways, and the most important evidence in an injury case is often controlled by the other side or by a third party. Acting quickly is what keeps it from disappearing.
- Do not repair or scrap the vehicle until it has been photographed and, in a serious case, inspected. The damaged vehicle is physical proof of forces and fault.
- Send a preservation letter early. A written demand that a business, trucking company, or property owner preserve specific items, including video, electronic data, and maintenance records, creates a clear duty and a record if those items later go missing.
- Move fast on video. Store and business surveillance systems often overwrite footage within days. A prompt request, backed by a preservation letter, can save it.
- Preserve electronic data. Phones, vehicle event data recorders, and electronic logs can be central. Our guides to truck hours-of-service and ELD data and dash-cam evidence explain how this proof is used.
- Keep your own records. Photographs, the names of witnesses, and the crash report all anchor a case. See our overview of crash reports and their use.
Electronically stored information is the most perishable evidence of all. Surveillance video, vehicle event data recorder downloads, infotainment and phone data, and electronic logs are routinely overwritten on automatic retention cycles measured in days or weeks. Once a claim is reasonably anticipated, that material should be identified and a written hold placed on it immediately, because a routine auto-deletion is no answer to a preservation duty that has already attached.
When the Defense Loses the Evidence
Spoliation cuts in the injured person’s favor too. If a trucking company recycles the logs, a store records over the video that showed the fall, or a manufacturer discards the product that failed, those losses can support a sanction against the defense. The earlier a preservation demand was made, the harder it is for the responsible party to claim the loss was innocent, and the stronger the argument for an adverse inference or a sharper remedy.
Frequently Asked Questions
What is spoliation of evidence?
It is the loss, destruction, or material alteration of evidence relevant to a claim. It can be intentional or careless. What matters is that a party had a duty to preserve the evidence and its loss has prejudiced the other side.
When does the duty to preserve evidence begin in Michigan?
Before a lawsuit is filed. Under Brenner v Kolk, 226 Mich App 149 (1997), the duty attaches once a party knows or reasonably should know that evidence is relevant to a potential claim, not only after a complaint is served.
What can a court do if evidence was destroyed?
A trial court has broad discretion to fashion a sanction that denies the offending party the benefit of its misconduct. Options range from an adverse-inference instruction and exclusion of related proof to dismissal or default in the most serious cases, plus costs.
When may a jury infer the lost evidence was unfavorable?
When the evidence was under the party’s control and could have been produced, the party has no reasonable excuse for not producing it, and the evidence is material rather than cumulative and not equally available to the other side. The inference is permissive: the jury is allowed but not required to draw it. The Michigan Court of Appeals affirmed such an instruction in Pugno v Blue Harvest Farms LLC, 326 Mich App 1 (2018).
What is a preservation letter and why does it matter?
It is a written demand that a person or business preserve specific evidence such as video, electronic data, or a vehicle. It creates a clear duty to keep that evidence and a record that strengthens a sanctions argument if the evidence later disappears.
What should I do first to protect my case?
Preserve the vehicle and any physical items, photograph everything, identify witnesses, and contact a lawyer quickly so preservation letters can go out before video is overwritten or records are discarded.
Worried important evidence in your case could disappear? Act now.
Attorney Manny Chahal moves fast to preserve the proof that wins injury cases. Free statewide review. No fee unless we recover.
Call 1-844-624-2425