How (and Why) to Preserve Evidence

Something bad has happened. Your customer has breached the contract by failing to pay. Your business partner has stolen money from the business account. You have been fired. You have gotten into a car accident. Your cousin has stolen money from your elderly uncle’s bank account.

All bad things right ? After you are done fuming, and calling your friends and relatives to complain, you should think about how you are going to prove your case if you decide to sue or, even worse, if someone decides to sue you.

Preserving evidence is generally not that complicated and can be done by following several simple rules. Here is a very short primer.

  1. Save your emails. Emails are most likely the most common exhibit marked into evidence in business cases in the modern world. If you have emails that are going to help your case – save them. Downloading them to a hard drive, in chronological order, is a good idea. And, if there are emails which may hurt your case, whatever you do, don’t delete them. If you get caught, and it is likely that you will, you could be sued in a separate claim for “spoliation”. In other words: destroying evidence. Don’t do it.
  2. Take pictures. A picture can be worth a thousand words, particularly after a car accident. Make sure that, after you take a picture, you are able to document when and where you took it. In many cases, timing is everything and you would be surprised how often a clever lawyer will try to prove that the picture is “fabricated.” (Lawyers believe, and try to prove, that everyone is lying).
  3. Keep meticulous payment records. If you need to collect money from a customer, make sure the customer’s payment records are clear and easy to understand. Customers love to defend non-payment claims by arguing that they already paid and that your poorly managed accounting department has made a mistake. Keep clear records and make your case easy to understand and present to the Court.
  4. Keep complete copies of signed contracts.  Business people, for some reason, love to execute “signature pages” and do not initial the pages of every contract. For some reason, transactional lawyers seem to encourage this practice. This is a bad idea, especially when you have to later decipher which draft of the contract your client’s signature applies to. Sign the whole contract, initial every page, and then send the entire signed contract to your lawyer. And, no, I don’t care if the contract is 700 pages – that is why they invented high speed scanners!
  5. Make notes for your lawyer. Lawyers love to receive facts written in chronological order along with a list of witnesses. It allows for a neat and often simplistic analysis of your case. Make sure to write on the top of your chronology: “Privileged and Confidential” Attorney-client communication. The reason for this is so that the other side in your case cannot gain access to it. And, whatever you do, don’t pass it around to other people – keep it between you and the lawyer. Otherwise, you may waive the privilege.

These are just some things to think about when preserving evidence. The steps to be taken are often much more involved, depending on the type of dispute which has developed. The idea behind this post is to get you thinking like a lawyer, so that when you call us, we have the proper evidence to win in Court.

 

roger-slade-e1519745291748About the Author 

Roger Slade is a partner with the Miami law firm of Haber Slade. Throughout his 28 year career, Mr. Slade has handled all types of litigation matters including business fraud, class-actions for both Plaintiffs and Defendants, real estate litigation, privacy litigation, commercial collection matters, employment discrimination claims, general business disputes and international family law matters.