{"id":899313,"date":"2021-11-04T15:59:07","date_gmt":"2021-11-04T21:59:07","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=899313"},"modified":"2021-11-04T15:59:11","modified_gmt":"2021-11-04T21:59:11","slug":"spoliation-of-evidence-construction","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/spoliation-of-evidence-construction\/","title":{"rendered":"Fixing That Mistake"},"content":{"rendered":"\n

Patrick Barthet | Construction Executive<\/a><\/p>\n\n\n\n

Someone once said, more people could learn from their mistakes if they weren\u2019t so busy denying that they made them in the first place. <\/p>\n\n\n\n

In the construction industry, mistakes are not uncommon. Addressing them, however, can be complicated. What should a contractor do when the project owner says some aspect of the project is not satisfactorily completed or isn\u2019t performing as it should? Should the contractor wait, hoping it may get resolved without having to do anything? Or should the contractor take on the repair or replacement as soon as practically possible?<\/p>\n\n\n\n

Doing nothing may be easy but can expose the contractor to significant subsequent liability. Dealing with the issue, on the other hand, could result in the destruction of what might later be required evidence in any litigation which develops. Considered \u201cspoliation<\/a>,\u201d such manipulation or elimination of evidence is a consequence to be avoided. Even though done with the best of intentions to fix a problem, the process can wind up exposing one to liability and damages.<\/p>\n\n\n\n

Balancing the immediate need to repair against the equally important need to preserve the evidence is never easy. But it must be done, and done carefully. Consider that what may seem like a minor error could compromise a building\u2019s structural integrity or operational systems. <\/p>\n\n\n\n

If evidence is destroyed, courts look at a number of factors to determine if a contractor should be penalized. What was the contractor\u2019s intent? Did he or she intentionally destroy evidence or was spoliation necessary to prevent further harm and to address safety concerns? Did the spoliation actually hurt the planned or ongoing litigation? If other evidence exists that provides insight regarding the issue, the effect of any spoliation is clearly reduced. <\/p>\n\n\n\n

Given these factors, contractors would do well to follow these guidelines:<\/p>\n\n\n\n