An accident and personal injury is an unexpected shock. When it happens, your world turns upside down in an instant. You may have a hard time thinking rationally, especially if you or loved ones have suffered serious injuries. The last thing you are likely to be thinking about is making a record of exactly what happened and gathering evidence.
But that is exactly what you must do as soon as possible. If your injuries or the loss of a loved one becomes an actionable legal claim due to another’s negligence, all evidence of fault by the other party or parties must be kept safe. You must preserve all the evidence.
The Many Faces of Modern Evidence
It used to be that preserving evidence might include copies of a police report, paperwork from doctors, perhaps photos taken with your camera and a file folder with additional significant papers—all of them hard copy. But these days, we have a dizzying array of digital evidence to preserve—data on computer hard drives, posts and photos on social media, emails, voice mails, text messages, faxes, network or system logs, photos and videos taken with phones or other devices, data recorders from vehicles—the list may seem endless. We have information that will help you with evidence preservation.
Physical Evidence to Preserve
Physical evidence is something you can touch or see. It is essential to preserve physical evidence right from the first moment. Depending on your case, such evidence could be:
- The actual damage to your vehicle/bike/etc., meaning in its unaltered, unrepaired state. It is extremely important to preserve the damaged physical item. If for some reason you cannot preserve it, you need photos of the damage that have the time and date recorded on them. You can place a digital watch in the picture if your camera does not automatically record the time and date.
- Photos of the accident scene, whether it is a traffic intersection or a floor where you slipped and fell, from as many angles as possible. Don’t forget photos of skid marks, broken car parts, and the surroundings. Take photos of anything that caused the injuries, including, for example, any substances on the floor that might have caused you to slip and fall.
- Bloody, torn, or burned clothing from the accident.
- Copies of any police reports.
- Photos of the injuries, taken over a number of hours, days, or even weeks, to show the progression of damage and healing. It can take a while for bruising to show up fully; it is important to document the process.
- Copies of medical reports and records relevant to the injury. These can include reports made by paramedics and the emergency room staff, doctors’ notes, examination results, test results, and the details of the doctor’s diagnosis and prognosis, as well as the opinions of specialists.
- In defective product cases, all packaging, receipts that prove purchase, instruction manuals, and warranties.
- Any relevant public records, such as driving records.
- The vehicle’s data recorder. Just about every car these days has one. Make sure yours is kept in a safe place.
- Your own personal written statement of what happened.
Digital Evidence to Preserve
The list of possible digital evidence is long. Digital devices are integrated into our daily lives, along with the use of social media on the internet. The following list is by no means exhaustive, nor will all items apply to your case. However, the list is meant to stress that anything and everything digital that is related to your accident must be preserved. Be certain to keep all of the following digital evidence (also called electronically stored information, or ESI) related to your accident and injury:
- All digital communications: email, voice mail, and instant messaging.
- Text messages and photographs on your cell phone.
- Any document, spreadsheet, or other files resident on your computer. Examples are .DOC and .EXE files.
- All audio files, such as .MP3 and .WAV files.
- All video files, such as .AVI and .MOV files.
- Image files (photos) and facsimile files. Examples are .PDF, .JPG, .GIF, and .TIFF files.
- Contact information on both computers and phones.
- Electronic calendars and diaries.
- Data related to online access, such as files containing history, cookies, and temporary internet files.
- Network and server activity logs.
- Archived files such as .ZIP files.
- Any and every relevant item on all social media. Facebook, Twitter, and Instagram are commonly-used social media sites, but others exist as well.
It is always best if you can provide hard copies of all digital information along with the digital form.
A Word about Witnesses
“Preserving” witnesses can help you, too. If you know that your accident and injury was witnessed by another, or if you locate a witness, ask them if they are willing to make a statement on your behalf. If so, write down their contact information so they can be contacted to make an official statement.
Witness information can be quite powerful. Sometimes witnesses have information that you don’t, such as overhearing the other driver say they’d been texting. Collect witness information, or have someone collect it for you, as soon as possible after the accident that caused your injury.
Final Things to Keep in Mind
When it comes to a personal injury case, remember that your claim depends on evidence—and the preservation of that evidence—that shows the other party’s negligence. Such evidence must clearly demonstrate that your injuries arose from the other party’s wrongful actions or omissions.
If injuries are serious, the sooner you retain an attorney, the better, in order to forestall spoliation of evidence. Spoliation is defined as evidence that is destroyed by the at-fault party. Your attorney will send a spoliation letter that will put the other party “on notice.” A spoliation letter makes it harder for the other party to argue in court that any evidence was “accidentally” destroyed.
Evidence that can be destroyed is not only physical. Data and files can be deleted or wiped from computers, phones, and other devices. Hard drives can be reformatted or defragged/compressed, thus eliminating files. Emails can be purged. Backup digital media can be destroyed or disposed of. Software called metadata strippers can delete crucial information from emails and other digital communication. (Metadata is basic information about the data, such as the author of the data, the date it was created, and the date it was modified.)
Finally, remember that evidence can cut both ways. Do not discuss your case on the internet, especially on any form of social media. The internet has no secrets. Once something is posted, you could be guilty of spoliation of evidence if you delete it or otherwise remove it from the internet, and you could face serious legal repercussions.