Spoliation of Evidence Nevada: The Case of the Missing Awning

By Lex Tecnica attorney, Tabetha Nakagawa, Esq.

When people think about evidence in a lawsuit, they imagine documents, photographs, emails, or text messages. However, while these pieces of evidence are generally critical to preserve in a lawsuit, sometimes the most important piece of evidence is something much bigger, like a patio awning.

Consider a real-world construction defect dispute involving something as ordinary as a patio awning. In this case, the homeowner alleged that the patio awning had been defectively constructed when it detached from the homeowner’s residence after a windy day. Therefore, the awning itself was considered a key piece of evidence. It was the single piece of evidence that could establish what was built, how it was constructed, its condition, and whether the defects alleged by the homeowner actually existed.

There was just one problem. The homeowner removed the awning and disposed of it after he filed a lawsuit, claiming that it presented a dangerous safety hazard that could have hurt someone. However, the opposing party did not have a reasonable opportunity to inspect or document the conditions of the awning before it was torn down and taken away.

As a result, the court determined that the destruction of the awning constituted spoliation of evidence and applied a permissive adverse presumption. This means that there is a presumption that the piece of evidence, had it been available, would have been unfavorable to the party who was responsible for its destruction.

This lesson extends far beyond construction disputes, because once litigation is underway, or even reasonably anticipated, parties should think carefully before deleting, destroying, replacing, repairing, or throwing away potential evidence.

What is Spoliation of Evidence?

“Spoliation” is the term courts use to describe the destruction or loss of evidence relevant to litigation. The Nevada Supreme Court has explained that a party has a duty to preserve evidence when the party knows or reasonably should know that the evidence is relevant to actual or anticipated litigation. MDB Trucking, LLC v. Versa Products Co., 136 Nev. 626, 636, 475 P.3d 397, 407 (2020).

It is important to note that a party’s obligation to preserve evidence can arise before a lawsuit is actually filed. As such, the relevant question is not necessarily “has anyone filed a lawsuit yet?” Instead, the question may be whether litigation was reasonably foreseeable and whether a party knew, or reasonably should have known, that the evidence could be relevant to the dispute.

Why Did the Awning Matter?

The missing awning provides a straightforward example of why preservation is so important. If a plaintiff claims that a structure was defectively constructed, the defendant may want to have an expert independently inspect it. This is because some critical issues need to be reconciled, such as how was the structure assembled? What materials were used? What was its condition? Were the alleged defects actually present? Could maintenance, weather, alterations, or some other factor have contributed to the alleged problems?

While photographs and reports may provide some information, they are not an adequate substitute for examining the physical evidence itself. Thus, once the awning was removed and discarded, the opposing party lost the ability to independently inspect the very structure that formed the basis of the allegations.

That creates an obvious evidentiary problem. A party should not be permitted to gain an advantage in litigation by eliminating evidence that the opposing party otherwise would have had an opportunity to examine.

What Can a Nevada Court do About Spoliation of Evidence?

Nevada law gives courts several tools for addressing spoliation, and the appropriate consequence depends on the circumstances surrounding the loss of evidence. An important distinction exists between evidence that is negligently lost and evidence that is willfully destroyed.

In Bass-Davis v. Davis, the Nevada Supreme Court explained that the negligent loss or destruction of evidence may support a permissive adverse inference. 122 Nev. 442, 134 P.3d 103 (2006). In other words, the factfinder may infer that the missing evidence would have been unfavorable to the party responsible for its destruction.

Conversely, willful suppression of evidence can have more significant consequences. NRS 47.250(3) establishes a disputable presumption “[t]hat evidence willfully suppressed would be adverse if produced.” The Nevada Supreme Court has explained that willfulness in this context requires more than intentionally performing the physical act that resulted in the evidence being destroyed. The inquiry focuses on whether the evidence was destroyed with the intent to harm another party through its destruction. Bass-Davis, 122 Nev. at 448-49. A court that concludes there was willful destruction of evidence may impose financial penalties, and may also even dismiss the case entirely.

The practical consequence is significant because destroying evidence can alter how a case is presented to the jury. In serious situations, spoliation of evidence could potentially affect the outcome of the litigation itself.

When Routine Cleanup Becomes a Litigation Problem

To be clear, spoliation does not arise only when someone dramatically shreds documents or intentionally destroys the proverbial smoking gun. Potential evidence accidentally disappears or gets deleted during ordinary life all the time.

For example, a homeowner repairs a leaking roof. A business replaces malfunctioning equipment. Someone involved in a car accident repairs or sells their vehicle. Security cameras automatically overwrite old footage. Employees routinely delete emails and text messages. Companies follow document retention policies that automatically purge old files.

Under normal circumstances, none of those actions may be unusual. However, once a dispute arises and litigation is reasonably anticipated, ordinary practices can create unexpected legal problems.

As such, before altering or disposing of something potentially relevant to a dispute, parties should consider whether the evidence needs to be preserved and whether other interested parties should have an opportunity to inspect it. Depending on the circumstances, preservation might involve retaining the item, suspending routine deletion policies, documenting its condition, arranging an inspection, or reaching an agreement regarding how and when the evidence can be altered or discarded.

Preserve First, Ask Questions Second

The practical lesson from the missing awning is simple. If a dispute has arisen and litigation is possible, do not assume that an object, document, photograph, text message, email, video, or other potential evidence can safely be discarded simply because nobody has formally requested it.

This is because the duty to preserve evidence can arise before a lawsuit is filed and before formal discovery begins. When in doubt, preservation is generally far easier to address than explaining later why an important piece of evidence no longer exists. After all, sometimes the most important evidence in a lawsuit is the evidence that is no longer there.

About the Author: Tabetha Nakagawa is an attorney at Lex Tecnica whose practice includes corporate law, labor and employment law, litigation, government and municipal law, and real estate law. A Las Vegas native and graduate of the William S. Boyd School of Law, she is committed to providing practical, strategic legal guidance with a strong focus on client service.