Spoliation of Evidence in Oklahoma Cases

You're injured in an accident. You hire an attorney. Your attorney sends a preservation letter demanding the defendant keep all relevant evidence. And then, mysteriously, that evidence disappears. The trucking company "routinely deletes" ECM data. The store "no longer has" surveillance footage. The defendant's cell phone was "lost." Medical records are "missing." This isn't coincidence. It's spoliation — the destruction or concealment of evidence — and Oklahoma law, including 12 O.S. § 3237, provides serious consequences for parties who engage in it.

What Spoliation Is and Why It Matters

Spoliation occurs when a party destroys, alters, or conceals evidence that is relevant to pending or anticipated litigation, within their control to preserve, and destroyed or hidden intentionally or through negligent failure to maintain it. The party doesn't need to destroy evidence with a smoking-gun memo saying "get rid of this before trial." Even negligent failure to preserve evidence that should have been kept can constitute spoliation. Courts treat it not merely as a procedural violation but as an affront to the integrity of the judicial process itself.

The duty to preserve arises once litigation is reasonably anticipated — which is significantly earlier than most defendants realize. A lawsuit doesn't need to be filed. A preservation letter doesn't need to arrive. If circumstances make litigation foreseeable, the duty already exists. A trucking company involved in a serious crash knows litigation is likely before anyone contacts them. Their obligation to preserve ECM data, driver logs, maintenance records, and dashcam footage begins the moment the crash occurs. A store where a customer slips and falls knows a claim is possible. Their obligation to preserve surveillance footage begins that day, not when they receive a letter from a lawyer.

Types of Evidence That Disappear

The categories of evidence most frequently spoliated reveal how pervasive the problem is. Electronic evidence is the most common target in modern litigation: vehicle "black box" and ECM data, surveillance footage from businesses and intersections, cell phone records and text messages, email communications, GPS and telematics data, and computer files and databases. All of this evidence is easily overwritten, deleted, or "lost" — and all of it can be critical to proving fault.

Physical evidence presents different preservation challenges. Vehicles involved in crashes may be sold, repaired, or scrapped before an expert can inspect them. Defective products get returned to the manufacturer or destroyed. Equipment involved in workplace injuries is repaired or replaced. Clothing and safety equipment that could show the mechanism of injury gets thrown away. Once physical evidence is gone, no amount of testimony can fully replace it.

Documentary evidence spoliation is often the most deliberate. Maintenance and inspection records disappear from files. Personnel records and performance reviews are altered or "updated" after employment claims arise. Incident reports go missing. Policies and procedures are conveniently revised after incidents — with the prior versions nowhere to be found.

What Courts Do About It

When spoliation is proven, Oklahoma courts have several remedies available, and the most powerful is the adverse inference instruction. This tells the jury that it may presume destroyed evidence was unfavorable to the party who destroyed it. For example: "The defendant had surveillance footage of the incident but failed to preserve it. You may infer that this footage, if produced, would have shown facts unfavorable to the defendant." This instruction can change the entire trajectory of a case by allowing the jury to fill evidentiary gaps with assumptions harmful to the spoliator.

Courts can also exclude the spoliating party's evidence on issues the destroyed evidence would have addressed — if you destroyed evidence about an issue, you don't get to present your preferred version of what that evidence might have shown. Monetary sanctions cover attorney fees and costs incurred because of the spoliation, including expenses for motion practice, expert witnesses retained to reconstruct destroyed evidence, and additional discovery made necessary by the destruction. In extreme cases involving intentional destruction of critical evidence, courts may enter default judgment against the spoliating party entirely. And Oklahoma recognizes that in some circumstances, spoliation may give rise to an independent cause of action — a separate lawsuit for damages caused by the evidence destruction itself.

To obtain spoliation sanctions, you must typically establish that the evidence existed and was relevant, that the spoliating party had a duty to preserve it, that the evidence was destroyed or made unavailable, that the destruction was intentional or negligent, and that you were prejudiced by the loss. The prejudice requirement creates a logical paradox that courts have addressed pragmatically: when someone destroys evidence, proving exactly what it would have shown is often impossible — which is precisely why adverse inference instructions exist. If we could prove what the evidence showed, we wouldn't need the evidence.

Preventing Spoliation Before It Happens

The best defense against spoliation is aggressive, early preservation demands sent immediately after an accident. Written preservation letters should go to all potential defendants, specifically identifying the categories of evidence to be preserved, noting that litigation is anticipated, and warning of consequences for destruction. This puts defendants on clear, documented notice of their duty and makes any subsequent destruction virtually impossible to excuse as innocent or routine.

In trucking accidents, preservation demands are especially urgent because modern trucks contain extensive electronic data that can prove speed, braking patterns, hours-of-service compliance, and mechanical conditions — all evidence that the trucking company exclusively controls. ECM data can be overwritten by subsequent trips. Freight brokers may also have relevant records and preservation obligations. In premises liability cases, businesses routinely recycle surveillance footage on 14- to 30-day loops, and "routine deletion" after a known incident isn't routine — it's spoliation. This is particularly critical in slip and fall cases where footage can prove how long a hazard existed before the injury. In product liability cases, manufacturers often try to recover defective products for "investigation," and once in manufacturer hands, products frequently disappear or are "tested to destruction." In employment cases, employers delete incriminating emails, modify personnel files, and "update" harmful policies after adverse employment actions.

When defendants destroy evidence, we pursue every available remedy. Spoliation often serves as its own proof — the fact that evidence was destroyed suggests it was harmful to the defendant, and courts recognize this inference. If you've been injured and suspect evidence is being destroyed or at risk, contact us immediately. Time is critical, and we can send preservation demands the same day you call.

Frequently Asked Questions

What is an adverse inference instruction?

An adverse inference instruction tells the jury that it may presume destroyed evidence was unfavorable to the party who destroyed it. For example, if a store deleted surveillance footage after a slip-and-fall, the jury can infer the footage would have shown the store was at fault. This instruction can dramatically change the outcome of a case.

How quickly can evidence be lost after an accident?

Very quickly. Surveillance footage is typically overwritten every 14 to 30 days. Vehicle ECM data can be overwritten by subsequent trips. Cell phone data may be remotely wiped. This is why contacting an attorney immediately after an accident is critical — preservation letters need to go out within days, not weeks.

Can I be sanctioned for spoliation if I accidentally deleted evidence?

Yes. Spoliation does not require intentional destruction. Negligent failure to preserve evidence — such as failing to suspend routine deletion protocols after learning about a potential lawsuit — can also result in sanctions. The key factor is whether you knew or should have known that the evidence was relevant to anticipated litigation.

What is a preservation letter?

A preservation letter is a formal written demand sent to potential defendants requiring them to preserve all evidence relevant to anticipated litigation. It identifies specific categories of evidence to be preserved and warns of legal consequences for destruction. Sending this letter early creates a clear record of the defendant's duty to preserve.

Does spoliation only apply to physical evidence?

No. Spoliation applies to all forms of evidence — electronic data such as emails, text messages, GPS logs, dashcam footage, and ECM data; physical evidence like vehicles, equipment, and products; and documentary evidence including records, reports, and policies. Electronic evidence spoliation is increasingly common and often the most impactful in modern litigation.

Can I sue the defendant separately for destroying evidence?

In some circumstances, yes. Oklahoma recognizes that spoliation may give rise to an independent cause of action — a separate lawsuit for damages caused by the evidence destruction itself. This is in addition to spoliation remedies like adverse inference instructions and sanctions available within your original case.

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This article is for general information only and is not legal advice.