Preserving Relevant Evidence

Post Authored By: Ava Caffarini

Regardless of your practice area, there will be times when a friend or family member (the “Client”) approaches you for advice on how to proceed with—or defend against—a personal injury lawsuit. Even if you cannot help the Client litigate the case, the advice that you provide the Client about where to look for evidence and how to preserve it may be crucial to the success or defense of the lawsuit. The purpose of this article is to inform you of the evidence that could be collected pre-suit because of the short shelf-life of the records at issue.

Making a Record of the Scene of the Incident

It may be necessary to visit the scene of the accident with the injured party or other witnesses to collect evidence soon after the injury occurred, especially if the injury was a fall caused by a condition on the property at issue. The condition and the surrounding areas can then be photographed to capture the condition as it existed at the time of the accident and to show what the condition looked like from the perspective of a person on the property. This information can help establish whether the condition should have been obvious to a reasonably prudent person. See generally Bruns v. City of Centralia, 2014 IL 116998 (discussing the open and obvious defense); American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill.2d 14 (1992) (discussing the distraction exception to the open and obvious defense).

For falls caused by cracks or holes in exterior walkways, photographs can be taken which show the depth, length, and width of the crack or hole using measuring tape to demonstrate scale. This type of evidence will preserve evidence of the size of the crack or hole and assist the Client to invoke (or defeat) the de minimis rule. See generally St. Martin v. First Hosp. Grp., Inc., 2014 IL App (2d) 130505 (providing that a vertical displacement of less than two inches is a non-actionable de minimis defect); Hartung v. Maple Inv. & Dev. Corp., 243 Ill. App. 3d 811, 815 (1993) (extending de minimis rule to private landowners). For injuries allegedly caused by unnatural snow and ice accumulations, photographs taken promptly after the accident occurs may be even more important. Ideally, these photographs would capture images of the actual snow and/or ice upon which the injured person fell, and the appearance of the surrounding areas, before the snow or ice is cleared or it melts. See generally Madeo v. Tri-Land Properties, Inc., 239 Ill. App. 3d 288 (2d Dist. 1992) (discussing burden of proof for cases involving unnatural accumulations of snow and ice).

Records in Possession of Private Parties

If the injury occurred on private property, the Client or an attorney can send the owner or occupier of the property a letter which notifies the owner or occupier that the property may contain evidence relevant to a lawsuit and demands that any such evidence be preserved. It may be necessary for such a letter to provide information about the facts underlying the lawsuit—such as the time and location of the incident, the parties involved, and the injury suffered—to ensure that the proper evidence is preserved. Ideally, this type of letter should be sent as soon as possible after the accident occurs.  The goal of such a letter is to notify the private party of the party’s duty to preserve such evidence because it is unlikely that the Client will be able to compel a private party to produce any evidence before a lawsuit is actually filed.  Once a lawsuit is filed, the Client can ask for the preserved evidence in discovery.

For example, when an accident occurs on the premises of a business or other private property, a video recording of the incident may exist. Generally, a business contracts with third parties for video surveillance services, and these third parties will only retain a copy of the video recording at issue for a brief period of time–usually thirty days or less. To ensure that this type of evidence is preserved, the Client should specifically identify video surveillance footage as evidence to be preserved in any letter sent to a business which demands preservation of evidence.

On the other hand, if the Client is a party that has received a preservation letter, an attorney should emphasize the requirement that the business comply with the letter and preserve evidence. Non-compliance can result in sanctions which are severely detrimental to defense of the lawsuit or even a separate claim for spoliation of evidence. See generally Kilburg v. Mohiuddin, 2013 IL App (1st) 113408 (holding that a duty to preserve evidence existed in light of the preservation letter and a court order requiring defendants to preserve said evidence). See also Brown v. Nitro Nightclub, Inc., 2014 IL App (1st) 131245-U, ¶ 32. A plaintiff may file the latter type of claim against a business for non-compliance even if the business is a non-party to the underlying personal injury lawsuit. However, by taking steps to preserve evidence in compliance with a preservation letter, the Client will avoid these pitfalls.

Public Records

If the injury occurred on public property or involved public services, evidence will likely exist which can be obtained through a FOIA request to the municipality in which the accident occurred. For example, in the case of an accident that occurred at or near a major intersection, a red-light camera operated by the municipality likely captured the incident. Most municipalities have the location of these red-light cameras identified on a website for the public to review. See, e.g., (last visited September 21, 2020). Quick action is necessary to preserve such a video because, like the city of Chicago, most municipalities only keep videos from red light cameras for thirty days or less. See, e.g., (last visited September 21, 2020). Because a video of the incident may possibly make or break a lawsuit, in some cases the Client or an attorney  may choose to send such a FOIA request regardless of whether a particular municipality’s website indicates that there are red light cameras at that intersection.

In addition, a municipality may also have relevant audio recordings of phone calls to emergency medical services reporting the incident. These recordings may capture an admission by a party opponent in the lawsuit or may assist the Client in finding eyewitnesses of the incident whose testimony might provide critical evidence. Like red-light camera videos, most municipalities only keep audio recordings for thirty days or less; therefore, any FOIA requests seeking audio recordings are more likely to be more effective if they are sent as soon as possible after the incident occurs. See, e.g., (last visited September 21, 2020). The Client or an attorney may also be able to obtain police reports and written dispatch records from EMS regarding the incident through FOIA requests. These written records are kept longer than audio and video recordings and do not require immediate action to obtain. These records are almost always helpful to assess the strength of the Client’s lawsuit or defense, and they also routinely reveal the existence of other witnesses and evidence.

Most municipalities have information regarding the submission of FOIA requests on the municipality’s website. Generally, there are different departments that keep different records, and the Client or an attorney will therefore likely need to submit more than one FOIA request to collect all of the information relevant to a particular lawsuit.

The Importance of Preserving the Evidence You Find

Before the Client or an attorney begins the process of preserving and recovering the aforementioned evidence, the Client must understand that any evidence discovered during this process must be preserved, regardless of whether it is favorable to the Client in the lawsuit or it is ultimately immaterial to the case. If it is revealed during the lawsuit that the Client—or worse, an attorney—destroyed evidence, a court will likely impose severe sanctions against the Client which will severely decrease the likelihood that the Client will prevail in the lawsuit. For example, if a defendant is found to have destroyed evidence, a court will likely instruct a jury to presume that the evidence in question was unfavorable to the defense.  If a plaintiff is found to have destroyed evidence, the court may even dismiss the lawsuit in its entirety. If an attorney is found to have destroyed evidence, it may not only be detrimental to the Client’s claim or defense, but a court may also impose monetary sanctions against the attorney and such conduct might have disciplinary ramifications with respect to the attorney’s license to practice law. As such, even if an attorney does not ultimately represent the Client during the litigation, a prudent practice is to keep copies of all evidence  the attorney may have discovered for the Client before the Client retained another attorney and the lawsuit was filed.  


 While the Client  may choose not to actively seek any of the evidence identified above and will not necessarily be penalized for that choice, if the Client is fully apprised of the evidence that may exist regarding the incident, the Client may make a better informed decision regarding the prosecution or defense of a potential personal injury claim.

About the Author:

Ava is an associate at Johnson & Bell, Ltd., focusing her practice area on professional liability, business litigation, nursing malpractice, and insurance defense. Ava is a graduate of the John Marshall Law School and has a B.S. in Molecular and Cellular Biology from the University of Illinois at Urbana-Champaign.

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