Preserving evidence after an accident

If you are injured in an accident and subsequently seek compensation from the party who hurt you, it’s important that you preserve all relevant evidence. In addition to your own need for evidence to prove your case, the law requires that you take steps to preserve potential evidence.

On July 1, 2019, a new statute went into effect in Virginia that creates an affirmative duty on all persons to preserve evidence that the person could reasonably foresee as being relevant to a future lawsuit. This means that once you decide that you will seek compensation against the negligent party, even before you hire a lawyer, you must take reasonable steps to preserve potentially relevant evidence.  Failure to do so could result in harm to your future lawsuit, such as the court imposing a presumption that the missing evidence would have been unfavorable to you.  If the court finds that you were reckless or intended to destroy or conceal the evidence, the court may even dismiss your case.

What are examples of evidence you should preserve? 

Most of the evidence in personal injury cases is not in the custody or control of the injured person.  If the police responded to your accident, they will often make a report and take photographs.  Any health care providers that treat your injuries will maintain records of your progress and treatment. But there are categories of evidence over which the injured party will have control. These include any texts or emails the injured party sends or receives about the accident, any letters, diaries, or other writings the injured party creates about the incident or injuries, and any internet postings by an injured person.  As a potential party to litigation, you have a duty to preserve all of this evidence, even if you believe your case will be settled before suit is filed.

Should I preserve social media posts?

If you are pursuing a claim for injuries and have a social media account, such as Facebook or Instagram, you should not delete any postings.  While you may not believe the posts are relevant to the incident or your injuries, the negligent party could use those posts as evidence in a lawsuit.  If you are like most people, you only post positive images on social media.  As a result, your online life may appear happier and more exciting than it is in real life.  If you post a photograph of yourself enjoying a friend’s birthday party after you were injured, the defendant could use that picture to argue that you were not really hurt in the accident, even if you were grinning for the photograph in spite of being in pain. For this reason, we recommend that you refrain from posting on social media until your case is resolved.  If you have already posted images on social media that you believe would be harmful to your case, you must not delete those posts or delete your account.  Doing so can result in the court sanctions described above.  Instead, you should consult with your attorney about the post.

If you are pursuing compensation for injuries and you have questions about your legal obligation to preserve evidence, you should consult with a lawyer to ensure that you are in compliance with the law.