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PreserveEvidencefrom a Loss Scene BY JOHN W. REIS, COZEN O’CONNOR, CHARLOTTE, NORTH CAROLINA

EXPLORING THE OUTERLIMITS OF THE DUTY TO

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There is no rigid rule on how to properly preserve a fire or otherloss scene. The general standard of conduct is that of“reasonableness” in not spoliating the scene or the evidence.But each judge differs on what is considered “reasonable.”Howell v. Maytag, 168 F.R.D. 502, 505 (M.D. Pa. 1996) (“Theappropriate sanction will depend on the facts andcircumstances of the case.”)(citing Schmid v. Milwaukee Elec.Tool Corp., 13 F.3d 76, 81 (3d Cir. 1994)). Patent v. NewmarCorporation, 538 N.W. 2d. 116, 119 (Minn. 1995)(areasonable standard by which to test the impact of spoliation isthe degree of prejudice to the opposing party). An examinationof the cases, however, provides at least some instruction onwhat is considered reasonable behavior in the context of sceneinspection and evidence preservation. The following articledraws from several cases and attempts to provide guidingprinciples on these issues.

Establishing the Duty Element Before sanctions can be imposed for spoliation of a loss sceneor evidence therefrom, the moving party must establish that theoffending party had a duty to preserve the scene or theevidence. Sentry Ins. V. Royal Ins. Co. of America, 539 N.W. 2d911, 916 (Wis. Ct. App. 1995) (“There is a duty on a party topreserve evidence essential to the claim being litigated.”). Seealso Travelers Ins. Co. v. Dayton Power Light, 663 N.E. 2d 1383,1386 (Ohio Com. Pl. 1996) (When the item is inextricablyconnected to the evidence which the offending party believesto have caused the loss and when its importance is foreseeable,such evidence should be retained for inspection until theopposing party has a reasonable opportunity, after notice, toconduct an examination by its experts.); Howell v. Maytag, 168F.R.D. 502, 505 (Pa.D 1996); Hirsch v. General Motors Corp.,628 A.2d 1108 (N.J. Super L. 1993).

Duty to Provide “Adequate Notice” to Potential Target inAnticipation of Litigation When it is impractical to preserve key evidence for a length oftime, the best practice is to provide notice to a putativedefendant of a potential claim to give that party an opportunityto inspect the evidence before it is destroyed or altered. Butwhat kind of notice is adequate? In Hoffman v. Ford MotorCompany, 587 N.W.2d 66, 1998 Minn. App. LEXIS 1374(Dec. 22, 1998), the court held that for notice to a potentialdefendant of a potential claim to be sufficient, the party shouldprovide a spoliation notice that reasonably notifies the recipientof a breach or a claim. The court held that a single telephonecall to a dealership canceling a service appointment andrequesting documents relating to a car that “caught on fire andburned a house down” was not sufficient to put the recipienton notice of a potential claim against it. The court therefore didnot abuse its discretion in excluding spoliated evidencesupporting those claims.

Duty to Allow Entry Onto Fire Scene Before Clean Up In the case of Wagoner v. Black & Decker (U.S.) Inc., 2006U.S. LEXIS 55314 (D. Minn.), a federal court barred a couple'sexpert from testifying at trial on a toaster fire case because thedefense expert was able to examine a fire scene that the couplehad demolished before the defendant's expert arrived at thescene. The Wagoners’ insurer notified Black & Decker of theloss and invited the company to the scene. However, beforeBlack & Decker could inspect the scene, the kitchen was

demolished by contractors. Black & Decker moved forspoliation of evidence sanctions. The Wagoners argued thatfirefighters had significantly changed the scene so thesubsequent further demolition did not prejudice Black &Decker. The trial judge sided with defendant and held that theplaintiff had a duty to preserve the fire scene until after Black& Decker's inspection and that the appropriate sanction was todisallow the testimony of the expert that had inspected thescene before the scene was destroyed.

However, in the similar case of Erie Insurance Exchange v.Applica Consumer Products, Inc., 2005 WL 1165562 (M.D.Pa), although the court agreed that plaintiff had a duty to makethe scene available before clean-up, it refused to impose thesevere sanction of summary judgment for the defendant notingthat the coffee maker manufacturer was able to mount adefense and therefore was not prejudiced by failure to inspectthe scene. The court noted the fact that the plaintiff had takena videotape of the fire scene.

Limits on the Duty to Preserve Evidence or Hold a Fire Scenefrom Clean-Up The duty to preserve and/or allow examination of evidence haslimits. In Mount Olivet Tabernacle Church v. Edwin L. WiegandDivision, 781 A.2d 1263 (Pa. Super. Ct. 2001), the court heldthat the burden on the plaintiff to preserve a fire scene isespecially limited where the opposing party has not identified apotential alternative fire source to the one claimed by theinjured party:

Of course, “the scope of the duty to preserve evidence is notboundless.” Baliotis [v. McNeil, 870 F.Supp. 1285 (M.D. Pa.1994)] at 1290. At a minimum, if the plaintiff knows that aparticular party is potentially responsible, in the absence ofexigent circumstances the plaintiff should provide the partywith the opportunity to inspect the evidence. Id. at 1291.Similarly, if the plaintiff’s investigation reveals that a particularproduct may be the cause of the fire, the plaintiffs shouldpreserve the product itself. If the investigation revealsalternative potential sources of the fire, these alternativesources should be preserved because they present clearlyrelevant defense evidence. Pia [v. Perrotti, 718 A.2d 321 (Pa.Super. 1998), appeal denied, 558 Pa. 621, 737 A.2d 743] at325. If, on the other hand, the investigations of the plaintiffand independent experts reveal no alternative sources of thefire, the plaintiff may be considered less at fault for failing topreserve the entire fire scene, because there is no clearlyrelevant defense evidence to preserve (aside from the allegedly-defective product itself). See Id. At 324 (party considered lessat fault for failing to preserve scene where “she simplypreserved what she had been informed was important.”) This isnot to say that a spoliating party is necessarily blameless insuch a situation. For example, where the victim of a fire hasidentified a potentially responsible party, particularly in theearly stages of the investigation, it may be just and reasonableto notify such a party so that the party can conduct a full andcomplete investigation, untainted by spoliation. Howell [ v.Maytag, 168 F.R.D. 502 (M.D. Pa. 1996)] 168 F.R.D. at 506-507. In other words, a fire scene may contain evidence ofalternative sources of the fire that were overlooked by theplaintiff’s investigators or third parties. Henkel [Corp. v.Polyglass USA, Inc., 194 F.R.D. 454 (E.D.N.Y. 2000)] >>

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194 F.R.D. at 456. In the final analysis, however, we concludethat a party’s responsibility for preserving the entire fire sceneis relatively low where there appears to be only one source ofthe fire. This is particularly true given the inherent instabilityand danger posed by unremediated fire scenes. Baliotis, 870F.Supp. at 1292.

781 A.2d at 1271.

Limits on Duty to Hold Scene from Clean-UpWhat if a notice letter is sent and the defendant ignores it?Must the claimant keep the scene from clean-up forever? Theobligation to allow evidence inspection does not continueindefinitely. Allstate Insurance Co. v. Hamilton Beach/ProctorSilex, Inc., __ F.3d __, Docket No. 04-6282-cv (2d Cir. Jan. 5,2007). The case involved an allegedly defective coffee makerthat caused a fire to the home of Allstate’s insured. Defendantargued that despite the fact that defendant’s experts said theydid not need Allstate to preserve the nearby oven range andhood, that Allstate’s failure to do so was sanctionable and thetrial court agreed, granting summary judgment to defendant.The Second District reversed, finding that the trial court abusedits discretion under the following analysis:

Hamilton Beach argues that Plaintiffs were obliged to preservethe range and range hood despite King’s indication that he wasnot interested in examining them. Citing our decision in FujitsuLtd. v. Fed. Express Corp., 247 F.3d 423 (2d. Cir. 2001),Hamilton Beach asserts that there is a broad duty to preserveevidence irrespective of the absence of a request by theopposing party. Fujitsu will not bear such a reading. While wenoted that “[t]he obligation to preserve evidence arises whenthe party has notice that the evidence is relevant to litigation orwhen a party should have known that the evidence may berelevant to future litigation,” id. at 436, we did not hold thatsuch an obligation continues indefinitely. Indeed, we affirmedthe district court’s refusal to impose sanctions, in part, becausethe defendant had never asked to inspect the evidence at issue.Id.

Here, not only did the defendant not request that Plaintiffpreserve the range and range hood, Hamilton Beach, throughits representative, affirmatively disclaimed any interest in theevidence. Hamilton Beach did so, moreover, after beingprovided a full opportunity to inspect the items. See Thiele v.Oddy’s Auto and Marine, Inc., 906 F. Supp. 158, 162-63(W.D.N.Y. 1995) (denying a spoliation sanction requested bythe primary defendant who had inspected the evidence beforedestroying it, while granting spoliation sanction in favor of athird-party defendant who was not afforded a similaropportunity to inspect the evidence), cited with approval inFujitsu, 247 F.3d at 436; Howell v. Maytag, 168 F.R.D. 502,505-08 (M.D. Pa. 1996) (concluding that sanctions moresevere than an adverse inference jury instructions wereunnecessary where plaintiff destroyed the scene of the fire,including other possible sources of ignition, before it wasinspected by the defendant, but preserved the presumptivecause of the fire); see also Baliotis v. McNeil, 870 F. Supp.1285, 1290 (M.D. Pa. 1994) (noting that “[t]he scope of theduty to preserve evidence is not boundless,” but requires, at aminimum, that the defendant be provided an opportunity forinspection (internal quotation marks omitted)). The DistrictCourt, therefore, abused its discretion in precludingconsideration of Plaintiffs’ evidence offered for purposes of

eliminating the possible alternate ignition sources. If allowed toconsider such evidence, a jury could reasonably conclude thata defect in the coffee maker was the more probable cause ofthe fire in comparison to all other possible causes. SeeHershenson, 139 Vt. at 223-24, 424 A.2d at 1078.

Id. at 13-14.

In Castillo v. Chief Alternative, LLC, 140 P.3d 234 (Colo. App.2006), the court upheld the trial court’s refusal to impose aspoliation sanction against a defendant when the plaintiffchose not to avail herself of the opportunity to inspect theevidence. Plaintiff claimed injury from a mirrored column thatfell on her while she was in the defendant’s night club. Thecolumn had a split locknut that caused it to fall. Defendantkept the fallen column for a year and a half, but Plaintiff neverasked to inspect it or for defendant to retain it until after shefiled suit. In its analysis, the court stated:

However, the behavior of the party moving for sanctions is animportant factor for assessing whether sanctions areappropriate. Gorelick, supra, § 3.13; see Fujitsu Ltd. v. Fed.Express Corp., 247 F.3d 423 (2d Cir. 2001) (trial court did notabuse its discretion in denying Federal Express's motion forsanctions where it was undisputed that it never contacted theplaintiff to seek an opportunity to inspect the evidence orotherwise requested that the evidence be retained); see also Inre Wechsler, 121 F.Supp.2d 404 (D. Del. 2000) (court shouldtake into account whether party had a meaningful opportunityto examine the evidence in question before it was destroyed);Thiele v. Oddy’s Auto & Marine, Inc., 906 F.Supp. 158 (W.D.N.Y.1995) (party's opportunity to inspect evidence beforespoliation is relevant to issue of sanctions).

Here, the evidence showed that the manager of The ChiefAlternative kept the entire apparatus, including the mirroredcolumn and the locknut, for approximately a year and a halffollowing the incident. During this time plaintiff did not requestto view or retain any of these items. The manager testified thatapproximately one month after the incident, he called plaintiffto inquire about her well-being and that plaintiff’s father saidthat "she was doing okay, that her bills were being paid, thatshe wasn’t hurt that bad, and they weren’t going to sue oranything." The manager also testified that in January 2003, hespoke with The Chief Alternative’s insurance company andasked "if there was anything else that they needed from [him],and they said no, nothing had been filed, or they didn’t needany other paperwork from [him]." He did not specifically askwhether the insurance company needed the mirrored column.The manager also testified that he discarded the evidence whenhe closed The Chief Alternative in June 2003.

According to plaintiff, her attorney sent a "demand package" toThe Chief Alternative’s insurance company in February 2003.However, a copy of this demand package was not included inthe record. There is no indication in the record that plaintiffnotified The Chief Alternative that she was planning to file acomplaint or that it should preserve the mirrored column.Plaintiff did not inquire about the discarded evidence untilafter she filed this action in July 2003.

The trial court found that, while the parties may have knownthat a claim was “still out there” when the evidence wasdiscarded, apparently no case had been filed, and thisdestruction was, at most, simple negligence. Based on thisfinding, the court denied plaintiff’s motion for sanctions >>

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and her request for an instruction that the jury could presumeby the destruction that the product was defective.

In Hernandez v. Pino, 482 So. 2d 450 (Fla. 3d DCA 1986), theappellate court reversed the trial court’s summary judgmentfinding it to be an improper sanction for plaintiff’s loss of x-rays, which defendant dentist had released to the plaintiffs,where defendant, who had already examined the x-rays in hisown capacity as an expert and had another expert examine thex-rays, remained able to defendant against claim for negligentdental treatment.

Limits on the Duty to Preserve Surrounding Evidence The duty to preserve items surrounding an allegedinstrumentality of a loss generally extends to those itemsconsidered inextricable connected to the allegedinstrumentality. In Travelers Insurance Company v. DaytonPower and Light Company, 663 N.E.2d 1383 (Ohio Ct. App.1996), the court imposed sanctions against the plaintiff forallowing destruction of a transition cabinet to a transformer ina electrical arcing case, evidence with the court found to be“inextricably connected” to the alleged instrumentality of thefire. The court stated:

Although not all items arguably relevant at a fire scene areessential to retain for inspection by opposing party’s experts,when the item made unavailable by the offending party isinextricably connected to the evidence which the offendingparty believes to have caused the fire and when itsimportance is foreseeable, such evidence should be retainedfor inspection until the opposing party has a reasonableopportunity, after notice, to conduct an examination by itsexperts. Hirsch v. Gen. Motors Corp. (1993), 266 N.J.Super,222, 628 A.2d 1108.

663 N.E.2d at 1386.

At least one court has held that disassembly of evidence, asopposed to its complete loss, is not sanctionable spoliation if itis done under controlled conditions. In Grand Hall EnterpriseCo., Ltd., v. Mackoul, 780 So. 2d 275 (Fla. 3d DCA 2001),defendants argued that plaintiff’s expert’s disassembly of aregulator to a gas tank to a barbecue gas grill that caused a firewas sanctionable spoliation of evidence, citing to DePuy andRockwell International, both of which had sanctioned a partyfor losing key parts of the product in question during itsdisassembly. The Third District Court of Appeal distinguishedthose cases, holding that the “mere disassembly” did notconstitute sanctionable spoliation of evidence where there wasno violation of court order, no intentional destruction or loss ofphysical evidence, and the defendant/manufacturer’s experts,as well as the jury, were given an opportunity to inspect thegrill’s parts. Moreover, the injured plaintiff’s expert “tookphotographs of the disassembly process before and during thedisassembly process, and made a videotape of most of thedisassembly.” The court further stated, “In this case, there wasno violation of a court order in which Mackoul was ordered notto destroy evidence and there was no intentional destruction orloss of physical evidence. In fact, all of the parts recoveredafter the fire were introduced into evidence at trial and GrandHall's and Hurricane Products’ expert, as well as the jury, weregiven the opportunity to inspect the parts.”

On the other extreme, the court in Allstate v. Sunbeam Corp.,865 F. Supp. 1267 (N.D. Ill. 1994) aff’d. 53 F.3d (7th Cir.1995), imposed the severest of sanctions, dismissal of

plaintiff’s case, for destruction of material evidence next to agas grill. Plaintiff alleged the gas grill was defective and causedthe house fire. However, the plaintiff failed to notify thedefendant of the claim prior to cleaning up the fire scene anddisposed of items at the fire scene, including parts of the gasgrill and remains of the spare tank. The key was defendant'sexperts testimony that it was impossible to determine the causeand origin of the fire from the parts preserved by the plaintiff.Id. at 1277.

Limits on the Extent to Which Actions of Non-Parties Can BeImputed to Parties What if the person or entity that destroyed the evidence is nota party to the underlying lawsuit? Courts have on occasionimposed sanctions against a party depending on therelationship between the party and the third person. Forexample, in Nally v. Volkswagen of America, Inc., 539 N.E. 2d1017 (Mass. 1989), the court imposed sanctions against aparty for spoliation caused by the party’s expert. The courtstated, “[H]ere an expert has caused a change in the substanceor appearance of such an item in such circumstances that theexpert knows or reasonably should know that that item in itsoriginal form may be material to [the] litigation, the expertshould be precluded ‘from testifying as to his or herobservations of such items…and as to any opinion basedthereon.’” Id. at 1021. Similarly, in Silvestri v. General MotorsCorp., 271 F.3d 583 (4th Cir. 2001), a vehicle was destroyednot by the plaintiff, but by a non-party. Nonetheless, becauseGeneral Motors had not been given notice of the claim or anopportunity to inspect the vehicle before its destruction, theFourth Circuit Court of Appeals upheld dismissal of the lawsuit.The court noted that for several months after the accidentplaintiff and its experts and attorneys had unfettered access tothe car. Plaintiff and his counsel had developed a theory ofliability against GM and plaintiff did not place GM on notice ofthe claim against it until suit was filed nearly three years afterthe accident. The Court noted that dismissal is usually justifiedonly where the spoliator has acted in bad faith, but upheld thedismissal nonetheless because of the degree of prejudice to GMin that the vehicle was the only evidence from which GM couldadequately develop its defenses. See also Andersen v. Schwartz,179 Misc.2d 1001, 687 N.Y.S.2d 232 (1999), which is citedin the Silvestri decision.

On the other hand, in Derosier v. Cooper Tire & RubberCompany, 819 So. 2d 143 (Fla. 4th DCA 2002), the court heldthat the defendant was not entitled to summary judgment forspoliation of remains of an allegedly defective tire after anaccident because neither the plaintiff nor plaintiff’s agents everhad custody of the remains of the tire in the first place.Likewise, in Adams v. Bath and Body Works, Inc., 2005 Ill. App.LEXIS 238, the appellate court held that the trial court erredin dismissing plaintiff's claims as a sanction for spoliation of anallegedly defective candle that a third-party destroyed whencleaning up the fire scene. The case involved a house fire thatinjured a husband and killed his wife. Before going to bed thatnight, the husband had allegedly blown out several candles thathad been burning in the living room of the house his familyrented from a non-party landlord. Fire swept through the housethat night, killing the husband’s wife and causing him severeburns. Although state and city fire inspectors were unable todetermine the cause of the blaze, they were able to pin downits origin, an area near a couch in the living room where sat >>

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a “Garden Lavender Botanical Candle” manufactured anddesigned by Globaltech Industries Inc. and sold by Bath & BodyWorks Inc. (BBW). After removing and later ruling out as thecause of the fire two electric lamps, Adams’ attorney shiftedfocus to the candle. However, by this point a cleaning companyhired by the landlord’s insurance carrier disposed of itemsincluding the couch, the end table on which the candle sat, andthe living room carpet.

Adams brought a product liability claim against BBW andGlobaltech and also sued the landlord under the Illinois SmokeDetector Act for failure to provide operating smoke detectors.BBW filed a third-party complaint against State Farm fornegligent spoliation of evidence. BBW and Globaltech alsomoved to dismiss the complaint because of the degree to whichit was prejudiced by the spoliation and the trial court grantedthe motion. On appeal, Adams argued that he was not the partythat destroyed the evidence. Defendants countered that Adamsshould have taken affirmative steps to prevent the clean up,thus breaching his duty to preserve under Shimanovsky v.General Motors Corp., 181 Ill.2d 112 (Ill. Sup. 1998). TheFirst District Appellate Court reversed, holding that underShimanovsky, the trial court is required to find that the partyaccused of spoliation has engaged in deliberate conduct indefiance of a court order. The court stated:

Though a potential litigant owes a duty to take reasonablemeasures to preserve the integrity of relevant and materialevidence…defendants have offered no reasonable measuresthat plaintiff could have, but failed, to undertake to protectthis evidence, short of treating the second floor of the houseowned by Kubasak like a crime scene. We could not find, norhave the parties cited, any case, either in Illinois orelsewhere, that has required such action. Plaintiff may havebeen both foolhardy to pin his hopes on the lamps as beingthe cause of the fire and negligent in failing to preserve theend table, couch and carpet. Such conduct, however, is notenough to support dismissal of his complaint as a discoverysanction under Rule 219(c).

Limits on the Duty of Potential Defendant's to PreserveEvidence Prior to SuitAs held in Royal & Sunalliance v. Lauderdale Marine Center, 877So. 2d 843 (Fla. 4th DCA 2004), a defendant targeted by asubrogated insurer does not have a duty to the subrogatedinsurer to preserve all debris collected at a fire scene. The caseinvolved a yacht owned by Royal’s insured that burned while ina facility owned by Lauderdale Marine Center which leased thespace to a yacht repair company. A vessel docked in a spacenext to the subject yacht was also partially burned. Royalbrought a subrogation claim against the yacht repair companyfor the damage to the boats and a claim against LMC foralleged spoliation of the evidence of the boats. After severaldismissals without prejudice of the spoliation claim, Royalfurther amended that count to allege that certain debris thathad been collected by the LMC fire inspectors and placed inbarrels were thrown away at some point between the fire of July4, 1998 and July 13, 1998. Royal argued that LMC had acommon law duty to preserve the debris and that without thisdebris it could not prove the exact cause of the fire and whomight be responsible. The trial court dismissed with prejudice

this final amended count against LMC and eventuallyconsolidated the order dismissing the spoliation of evidenceclaim with an order granting LMC’s motion for summaryjudgment and issued a final order of dismissal.

On appeal, the primary issue was the duty element to aspoliation claim, i.e., whether the LMC had “a legal orcontractual duty to preserve evidence.” The court found that itdid not and distinguished the facts from that of another case,Hagopian v. Publix Supermarkets, Inc., 788 So.2d 1088 (Fla.4th DCA 2001), where the court had imposed sanctions on adefendant for pre-suit loss of a soda bottle fragments.

The Hagopian case involved an injury in April 1991 to a womanwhile shopping at a Publix supermarket when a soda bottleexploded off the shelf. The store manager filled out an accidentreport, collected the bottle fragments and placed them instorage. Ms. Hagopian requested a copy of the incident report,but the manager refused. In July 1991, Ms. Hagopian'sattorney wrote a letter to Publix notifying the company of hisclient’s claim, but the attorney did not request that Publix savethe broken bottle. Within several months, the Publix store inquestion closed and the broken soda bottle was discarded. Ms.Hagopian filed suit against Coca Cola and Publix in 1994 forstrict liability and premises liability. In April 1995, Coca Colarequested that Publix produce the actual bottle for inspectionby experts. Publix informed Coca Cola that the bottle had beendiscarded. In 1997, Ms. Hagopian for the first time requestedto inspect the bottle. Upon learning that it had been discarded,she amended her complaint to allege a cause of action againstPublix for spoliation of evidence.

The Fourth District Court of Appeal determined that Publix hada duty to preserve the bottle for use in anticipated litigation.Such duty arose from the preparation of an incident reportcoupled with a refusal to give a copy to Ms. Hagopian based onwork product grounds. According to the court, those two factsevidenced Publix’s anticipation of litigation, which madepreserving the instrumentality of the injury a necessity.Therefore, the court determined that an adverse party's duty topreserve evidence is created when that party recognizes that anadverse suit is imminent.

No Automatic Duty of Subrogated Carrier to PreserveEvidence for Benefit of Its InsuredAs held in Silhan v. Allstate Insurance Company, 236 F.Supp.2d1303 (N.D.Fla. 2002), an insurer does not automatically havea duty to preserve evidence for the benefit of its insured'spotential third party claim, even when the insurer undertakesits own subrogation investigation. There, the court held thatunder Florida law, a homeowners insurer’s liability to insuredsfor intentional spoliation of evidence, based on its failure topreserve evidence of all possible causes of fire that destroyedinsureds’ home, was precluded by the absence of the insurer'sintent to disrupt insureds’ products liability action againstmanufacturer and retailer of the dishwasher that was onepotential cause of the fire. The court rejected the insured'sargument that provisions of homeowners insurance policygiving the insurer the right of subrogation and the right to takepossession of covered, destroyed property created a duty onpart of the insurer to preserve evidence of all possible causesof fire that destroyed the insureds’ home. >>

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Conclusion The good news is that courts generally impose sanctions onlywhen a party has acted unreasonably. That is also the bad news.There is no way of truly predicting what one individual judge willconsider reasonable and what another judge will considerunreasonable. The appellate court reviewing that decision willgenerally uphold whatever the trial judge rules unless it is clearthat the judge has abused his or her discretion. However, somebasic principles do emerge from the cases.

A party that proceeds to clean up a scene is best advised to makea good faith effort to notify a potential opposing party of the lossand give some reasonable amount of time to inspect the scene. Ifthe party makes a reasonable effort to identify and notify theopposing party but simply cannot do so through no fault of itsown, the party generally will not be sanctioned for cleaning up thescene. In that scenario, however, the party should take affirmativesteps to document the loss scene (through photographs and, insome cases, videotapes and measurements) of the fire scene andto retain where practicable those items of evidence that areinextricably connected to the instrumentality of the loss. It canalso be useful to preserve exemplars of the instrumentality if suchexemplars are at the scene (i.e., where a lighting fixture is allegedto have caused a loss, it can be useful to preserve similarundamaged fixtures from the scene).

This is not so say that every subrogation investigation shouldinvolve the use of videotaping, measurement taking and evidencestorage. To impose that burden on the insurance industry wouldbe overly burdensome, cost prohibitive and indeed unreasonable.However, at least two of the cases cited in this article made aspecial point of noting that the scene and/or disassembly ofevidence had been videotaped by the party when denying anopposing party's requested spoliation sanction. In those large losscases, therefore, where the other side is known to exist but hasnot or cannot be notified, photographs, video images and retainedevidence can be useful tools in addressing a later claim ofprejudice by the opposing party.

Although there are no hard rules that can be followed in decidingwhat steps to take in investigating and preserving a loss scene,there is what can be described as a “golden rule” in suchmatters: Do onto other potential parties what you would wantdone to you. Put yourself in the place of your counterpart on theother side and ask: What would I want the other side to do if putin this situation? If you can clearly articulate certain things andif they are steps that you can reasonably undertake, you cananticipate that the other side will later argue you should havedone those things. The key is to at least consider what can bedone and then do those things – within the bounds of reason.