“Spoliation of evidence” as defined in the National Fire Protection’s Guide to Fire and Explosion Investigations (NFPA 921), is “the loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation.”
“Spoliation” may occur when evidence is moved, modified, or destroyed during examination and/or destructive testing. Therefore, extreme care must be taken during the examination of a fire scene as any action on the part of the fire investigator that impairs the opportunity of other interested parties (other fire experts, attorneys, etc.) to obtain the same “evidentiary value from the evidence.
If a fire investigator is not careful with the evidence he or she may collected or handled at the fire scene, it is not beyond the court may impose discovery or monetary sanctions, exclude expert testimony, dismiss a claim or defense or even prosecute the expert under criminal statutes relating to obstruction of justice.
In a subrogation action filed by a prominent insurance company (plaintiff) for damages it paid to its insured’s as the result of a fire that occurred in the laundry room of the insured’s residence, Plaintiff claimed the fire was caused by an exhaust fan manufactured by Defendant.
The fire investigator retained by the insurance company to conduct the initial investigation returned to the scene with a forensic electrical expert to analyze the electrical appliances, components, and wiring at the residence. Once the inspection was complete, the Plaintiff advised the home owner that they could begin repairs to the fire scene.
The Plaintiff then referred the insurance claim to its subrogation unit with the intent to pursue recovery against the Defendant and faxed the Defendant a letter a notifying the Defendent of the fire and Plaintiff’s belief that the Defendant’s fan was a cause of loss and offered the Defendant an opportunity to inspect the fire scene prior to repairs. By that point, however, repairs had already begun and the fire scene had not been preserved.
Although the Defendant had since inspected evidence removed from the fire scene, the Defendant was unable to inspect the scene it its original position and urged three possible sanctions applicable to this situation: dismissal, exclusion of Plaintiff’s experts, and an adverse jury instruction. The court granted the Defendant’s Spoliation Motion and the matter was dismissed with prejudice.
What can one do as a fire investigator to prevent “spoliation” from occurring? The first priority of every fire investigator is to conduct their investigation so as to minimize the loss or destruction of evidence and minimize allegations of spoliation. Prior to touching or moving anything, make sure the evidence is carefully photographed and documented. If the evidence must be moved, as is sometimes required to complete an investigation or to protect the evidence from further damage or theft, it is vital that the evidence is properly packaged, labeled and stored in a secure and controlled location.
Fire investigators both public and private should always consider the impact that his or her actions may cause “down the road” regarding the handling of evidence discovered at a fire scene. Additional guidance regarding notification can be found in ASTM (American Standards for Testing and Materials) E 860.