Justin Scott and Alan Schiess | Babcock Scott and Babcock
In Utah construction disputes, the disputed work itself is often the best evidence. A cracked retaining wall, failed waterproofing, improperly compacted subgrade, or nonconforming concrete placement may all need to be repaired quickly. But once a claim is pending or reasonably foreseeable, those same conditions may also be evidence that must be preserved. The question is not simply whether a party can move forward with repair, but what notice must be given before doing so. In Utah, Diversified Concepts LLC v. Koford provides the baseline common-law framework for answering that question.
Diversified arose out of a residential project involving retaining walls. The Court explained that sanctionable spoliation occurs when evidence is destroyed “in violation of a duty,” and that the duty to preserve arises once litigation is pending or reasonably foreseeable. The court also made clear that the duty is judged objectively. The question is not whether the party actually expected litigation, but whether a reasonable party in the same circumstances would have foreseen it. For Utah contractors, owners, and subcontractors, that means the duty to preserve likely began well before a complaint is filed—often when an identifiable dispute first emerges.
Why This Matters
Importantly, Diversified recognized a practical reality that matters in construction. Evidence often cannot sit untouched forever. Buildings leak. Walls move. Occupants need to use the property. Safety issues may require immediate corrective work. Accordingly, the duty to preserve is not absolute in the sense that it forbids all repair or demolition. To discharge one’s duty to preserve, there must be reasonable grounds for destroying evidence and notice must be provided in advance to give the opposing party a reasonable opportunity to inspect or otherwise protect its interests.
This is the critical element that must be established. In practice, parties often send a general notice in the form of a demand letter or several letters, to “notify” of defective work, that repairs are being considered, or that legal counsel has been obtained. The custodial party may believe that evidence may be destroyed if there is an identified disputed condition that is photographed or videoed with maps or samples. Don’t fall for this fallacy. Diversified flatly rejects that approach. The court expressly said that general notice of potential litigation, even coupled with the engagement of counsel, does not shift the burden to the other side to investigate and preserve evidence on its own. The primary duty remains with the custodial party that controls the evidence. The course of conduct is clear.
To discharge the duty to preserve before evidence is altered or destroyed, notice should specifically inform the noncustodial party of the factual and legal basis for the anticipated claim, the evidence that will be destroyed, the reason the evidence must be destroyed, the date on which destruction will occur, and a reasonable opportunity to inspect the evidence must be given.
While Diversified has established a clear standard on the duty to preserve and proper notice requirements, if there is a contract that provides different preservation and notice requirements, the parties should follow those requirements in addition to making sure that the notice also satisfies Diversified’s notice requirements before evidence is destroyed.
Practical Steps to Ensure Proper Notice
For the Utah construction industry, the takeaway is simple. When the work itself has become evidence of pending or reasonably foreseeable litigation, general notice is not enough. A party may have valid reasons to proceed with repair or demolition. However, the party controlling the evidence should assume that detailed pre-destruction notice is required. And if the contract imposes its own notice procedure, follow it carefully. In construction disputes, the safest practice is to treat preservation like any other critical project obligation—do it early, do it in writing, and do it in a way that allows the project to move forward.
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.