By the time a case reaches an attorney’s desk, all too often pertinent evidence either has been lost — or was never collected in the first place. California’s statute of limitations for a personal lawsuit is two years; consequently, an attorney’s first involvement in an incident on your property usually happens more than two years after the incident has occurred. If your hotel or resort has not properly gathered and preserved evidence, it becomes very challenging to recreate what transpired. Hence, it is imperative that; your hotel have formal written evidence retention policies; that first responders and security teams are properly trained on how to gather the evidence; and that hotel staff take steps to ensure that this evidence is preserved. Failing to collect and preserve evidence can turn a defensible case into a major settlement.
Spoliation of Evidence
Incident investigators and the people your hotel has tasked with preserving evidence need to be aware of the severity of failing to do their job well from a legal perspective. The legal phrase ‘Spoliation of Evidence’ relates to the destruction of, failure to preserve key evidence. In certain circumstances, if a judge decides that your hotel has improperly destroyed or failed to preserve key evidence, the judge can instruct a jury that they must find a negative inference against the hotel. In other words, the judge will tell the jury that they are to assume that the hotel did not preserve the evidence because it was harmful to the hotel’s case.
An Effective Document Retention Policy
In the event of a lawsuit, an effective document retention policy will be helpful in anticipating the kinds of documents needed, and specify optimum hotel staff training to ensure the proper elements are saved and preserved. The policy should articulate an easy and secure method of storage including backup, with spot-check documenters in place to ensure the policy is followed correctly. Unfortunately, many hotels have policies but don’t use them, and this can look worse during litigation than if no policy existed at all. Plaintiffs’ attorneys are particularly fond of this practice, routinely remarking to judges and juries, “Clearly, they don’t even follow their own policies...”
Typically, incident-related evidence includes documents, photos, videos and objects. Documents consist of witness statements, incident reports, MOD logs, guest folios and activity waivers. It is also imperative to gather food and beverage receipts, as well as mini-bar inventories, which are often critical considering how many incidents on hotel properties can be linked to alcohol consumption.
Gathering and Preserving Photos and Videos
Frequently, even before first responders arrive by-standers and witnesses will be the first to use their phones to take photographs and film video footage of an incident. Be proactive and ask them to share the most pertinent material — they will usually be helpful and forthcoming. Once first responders (and later investigators) arrive, photographs and videos should be shot from both a micro and macro perspective, to show the incident area from both close up, as well as in context with its surroundings. Investigators should take a uniform approach here; conditions change so it is important to mitigate the variability from one incident to the next. Everything — even aspects that will hurt your case — should be photographed or shot on video. Should litigation arise, your insurance carrier and attorney need to see the good with the bad so they are never surprised by evidence presented by the opposition.
Videos can make or break a case. For example, in one case, video footage clearly showed that the plaintiff initiated the fist fight that was at the heart of his lawsuit. The video would have absolved the hotel from all liability, but the hotel failed to properly preserve this key piece of evidence. As a result, the case had to be settled instead of vigorously defended. Further, as digital surveillance systems continue to become the industry standard, judges have been less forgiving when it comes to claims that the pertinent footage was either lost or never preserved. If an incident warrants an incident report, then it is imperative that investigators check to see if the incident was captured on surveillance. If it was, then it should be preserved. Equally important, if it was not captured on video, then the contemporaneous effort to locate relevant footage and negative result needs to be documented. The video retention policy should provide specific direction to personnel, such as “within 24-48 hours, search screenshots and CCTV for video, and make sure that it’s preserved on a secure medium for future use.”
Save and Store Objects
Perhaps to a greater extent than any other kind of evidence, objects are frequently discarded. Nine out of ten times that someone falls through a lounge chair by the pool, the chair will be tossed in the trash—an often critical mistake. There needs to be a section of your evidence collection and retention policy that addresses object preservation. For example, in the lounge chair circumstance, there may be potential product defect issues and liability could be shifted to the manufacturer. However, this can be nearly impossible if the item is not saved and preserved.
While it’s easy to implement systems for the storage of digital files, many hotels will find it difficult to store physical objects for two to five years. Evidence storage facilities were created to meet this need, storing everything from automobiles to tractors and furniture. As a general rule, insurance companies have a line on these local facilities, and will usually offer to offset the cost of the storage because preserving the items could be instrumental in securing their defense.
It can take years for an incident to turn into a lawsuit. Hotels and their first responders need to approach incident response and investigation with a long term perspective when it comes to gathering and preserving incident-related evidence. Devising a comprehensive evidence gathering and preservation policy, training responders and staff, and using intermittent spot-checks can go a long way in shielding your hotel or resort from liability. Take a thorough approach, and do not take anything for granted; if something seems like it could be useful, it probably is and should be saved and preserved. Further, discussing your practices, questions and concerns with your insurance carrier and experienced legal counsel is also a highly recommended best practice.