Riley Bennett Egloff Magazine July Magazine | Page 12

(quoting Rimkus Consulting Grp., Inc.
v. Cammarata, 688 F.Supp.2d 598, 613
(S.D. Tex. 2010) ). Prejudice likewise
can range along a continuum, from an
inability to prove claims or defenses to
little or no impact on the presentation
of proof. Id. “[I]f there is an inadvertent
loss of evidence but severe prejudice to
the opposing party, that will influence
the appropriate response, recognizing
that sanctions (as opposed to other
remedial steps) require some degree of
culpability.”

After reviewing the facts at issue, the Court of Appeals
upheld the Trial Court’s ruling that Aqua had not
intentionally failed to preserve the relevant evidence.
Thus, Aqua had met the first prong of the cases cited
above. However, the Court of Appeals determined, as a
matter of law, that Aqua had failed to meet the second
part of the test, and that it had negligently failed to
preserve relevant evidence because, the Court stated,
“Aqua had a duty to preserve the entire furnace…”
This case is instructive for at least
three reasons:
1. It affirms long-standing Indiana law
that parties and their insurers have
a duty to preserve property that
could become relevant evidence in a
1
2
lawsuit;
2. It is not enough to retain a
demolition subcontractor or other
subcontractor and provide it with
general instructions to remove and
retain a general part of the property
at issue; and
3. Parties in possession of property
that could become relevant to a
lawsuit should consider retaining an
expert early in the process and using
the expert, rather than a general
subcontractor or other “non-expert,”
to decide what part of the evidence
should and should not be retained.
Finally, the above case dealt with a spoliation claim
regarding tangible evidence. Parties in Indiana
have similar duties to preserve intangible evidence,
such as computer data and other electronically
stored information (“ESI”). Because it is common for
businesses to perform periodic deletions of ESI to
prevent overloading computers with large volumes of
outdated and irrelevant ESI, it is equally important in
cases involving ESI to identify the relevant ESI early in
the process and to retain any relevant ESI in its original
form. As in the case above, identifying the appropriate
expert to assist in that process can be an important
first step.
See Northern Indiana Public Service Co. v. Aqua Environmental Container Corp., 2018 WL 2091583
Id. at 189–90.
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Riley Bennett Egloff LLP - April 2018