In every personal injury litigation case –well in advance of Trial– there is an exchange of information referred to as the “discovery period”. During the discovery period, both parties (Plaintiff and Defendant) exchange information/documents in an attempt to obtain evidence and information to support their case in chief. The discovery period happens in every single personal injury litigation case and is critical to establishing liability, causation, and damages. However, on frequent occasion, we, as Plaintiff attorneys, encounter an obstacle called the “Privilege Log”. The Privilege Log is a document filed by a Defendant that allows the Defendant to withhold certain requested document(s)/item(s), but requires disclosure of certain identifying information relating to the document(s)/item(s). Documents/items usually end up on the Privilege Log (and avoid disclosure) because a Defendant asserts an Objection, such as Work-Product Privilege. An example of a frequent item we see included on a Privilege Log include photographs taken by a Defendant in anticipation of litigation (Work-Product Privilege). However, a good attorney is able to review the Privilege Log for sufficiency and, after a fact-specific analysis, determine if a Motion to Compel Documents should be filed. Depending on the facts of each case, in various situations, documents/items disclosed on a Privilege Log end up being produced, usually after a showing of relevancy, need, and lack of reasonable alternatives. As each personal injury case is different, it is important to hire an attorney that is familiar with the case law relating to Privilege Logs, otherwise, relevant, critical information and documents can be withheld.
What is a Non-Spoliation Letter, and Why Does It Matter to My Lawsuit?
Author: Brandon D. Smith, Esq.
It is sometimes the case that, following an accident, evidence goes missing, is misplaced
or discarded, or, in the more egregious cases, is intentionally destroyed or discarded. This could
be as a result of a business policy of only holding and/or storing surveillance film for a
maximum of 3-days, after which the surveillance film is automatically discarded. Thus, it is good
legal practice to send opposing counsel a non-spoliation letter if the sought-after evidence is
and/or could be deemed to be of a temporary life-span or could possibly be destroyed by its very
nature (such as the surveillance film mentioned above). But what is a Non-Spolitation Letter? A
non-spoliation letter is a legal tool attorneys use to put your legal adversary on notice of specific
evidence or types of evidence to preserve for litigation, and subsequently for trial. The term
“Spoliation” means to tamper with, destroy, modify, reduce, convert, or alter in any way, shape,
or form, a particular type or piece of evidence as the evidence was in its true organic original
form. Preserving evidence is important for trial, and preserving a specific type or piece of
evidence can make a huge difference in your lawsuit.
In the same vein, non-spoliation letters can be hybrid in nature. Sometimes I do not know
exactly what the evidence is going to be because the discovery phase of that particular case is
still in its early stages. However, in other cases, after I have legally analyzed a case based on its
merits and legal theories, I will want to mention and delineate specific evidence to be preserved.
These include vehicle black boxes in wrongful death cases, surveillance film in slip-and-fall
cases, corporate meeting minutes of board members in ultra-hazardous equipment cases, specific sharp objects, training manuals and/or safety procedures in hotel premises liability cases, and time sheets and other business records kept in the regular course of business in cases involving a shooting and premises liability (as well as many other types of evidence).
There are no set formulae or indices for how to craft these types of letters, or what specific evidence one should include. These types of letters are crafted on a case-by-case basis depending on your case’s specific facts, legal theories, possible affirmative defenses, and even the far-sighted legal strategy for trial. For the reasons set forth hereinabove, it is critical to hire an attorney that is experienced in prosecuting personal injury claims.
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case evaluation, call us now at (561) 622-2700.
Maybe – the Court must consider a 4-prong test to determine whether the equities (i.e. fairness) favor keeping your case in a Florida courtroom. This test is commonly referred to among attorneys as the Doctrine of Forum Non Conveniens. The Forum Non Conveniens test is best discussed in the 1996 Florida Supreme Court case of Kinney Sys. v. Cont’l Ins. Co., 674 So. 2d 86 (Fla. 1996). As is described in Kinney, there is a “strong” presumption against disturbing the Plaintiff’s choice of forum. Therefore, if a Florida Plaintiff files a lawsuit in a Florida courtroom, the burden of proof then shifts to the at-fault Defendant to argue why fairness favors keeping the case in the foreign state/forum. To accomplish this, the at-fault Defendant must satisfy the following 4-prongs: