How to Avoid Spoilage and What to do About a Spoilage Letter?
Spoilage is a crucial part of the litigation process. It makes sure that evidence is not “lost.” Spoilage occurs when the owners get repairs on defects without giving a second thought about destroying evidence. The new residential constructions are picking up pace in the US. August 2021 saw an increase of 3.9% in the start of new constructions.
With so much construction activity going on, there is bound to be a situation where construction disputes arise. In such cases, a spoliation letter is sent to the party to preserve evidence and stop any repair, reconstruction, or correction activities from taking place. This article therefore provides you with detailed information about the ways you can avoid spoilage in your construction project.
Have Detailed Contracts in Place
Contracts are an imperative part of the construction project. They state the responsibilities of each party. Therefore, they should be clear, concise and list the scope of work in as much detail as possible to avoid ambiguity. Both parties should review the draft contract and ensure that they are on the same page. This ensures that what one party assumes to be complete, the other party finds incomplete.
Track Progress Closely
When you make sure that you monitor the project’s progress closely, you leave little room for dispute. In addition, both parties should review the work in progress at various stages and sign off on each project stage. This way, the homeowner and contractor are both in agreement about that part of the project.
Don’t Change Schedule
Changes in schedules can cause claims of delay. Therefore, it is recommended that you develop a solid plan with accurate deadlines for each phase of the construction activity. This includes factoring in any contingencies. You may also include a clause in the contract where owner-caused delays are clearly stated and signed off by both owner and contractor.
Be Up to Date on Local Regulations
The business of construction can be tricky due to the dynamic legal environment. As a contractor, you'll need to make sure that you are updated with the latest regulations regarding local, environmental, and state laws regarding construction. Failing to adhere to these regulations may lead to disputes and call for a spoliation letter.
Now that you've learned about the different ways to avoid spoilage, here is what you need to do in case you get one.
Preserve the Evidence
When you receive a spoilage letter, the first thing to do is stop any repairs or corrections to the site. The good thing is, repairs or corrections can be treated as the destruction of evidence when the property is under dispute. Hence, do whatever you can to preserve the evidence. It is also a good idea to take pictures of the site to ensure no weather damage.
There are also situations where State and Federal laws do not require you to maintain records after a certain period. This results in companies often destroying those records. A spoliation letter ensures that any records related to the case are not destroyed even after the Federal and State limitations have passed.
Use Technology to Your Advantage
With smartphones allowing you to take good-quality pictures and videos, you can take advantage of it. Record videos, and take as many pictures as you can so that any foul does not affect your case. With so much free cloud storage available with a Google or Microsoft account, you can easily store these without having to pay for them for as long as required.
Court Remedies to Spoliation
The courts have developed remedies against spoliators such as adverse inference jury instructions, monetary sanctions, criminal penalties, evidentiary sanctions, and a separate spoliation tort. The school of thought that dictates these remedies encompasses both negligible and deliberate spoilage.
Under the adverse inference jury instructions, the jury is asked to decide if the party negligible or deliberately destroyed evidence. If the jury finds the act to be deliberate, the jury would consider the evidence against the destroyer and may prove the destroyer guilty. The court can then place sanctions, impose penalties, and/or allow filing a separate spoliation tort.
Spoliation can occur due to either negligence or the act of deliberate destruction of evidence. In any case, the spoliation letter should not be taken lightly. While you want to avoid spoliation as much as possible, following the steps indicated above may still lead to a dispute. In such cases, you should immediately stop any work on the site and work to preserve evidence.
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Posted - 10/20/2021
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