Spoliation in Injury Cases: What Happens When Evidence 'Goes Missing' in Oklahoma

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 provides serious consequences for parties who engage in it.

What Is Spoliation?

Spoliation occurs when a party destroys, alters, or conceals evidence that is:

• Relevant to pending or anticipated litigation
• Within their control to preserve
• Destroyed or hidden intentionally or through negligent failure to preserve

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 you should have kept can constitute spoliation.

The Duty to Preserve Evidence

Parties have a legal obligation to preserve evidence once litigation is reasonably anticipated. This duty arises:

• When a lawsuit is filed
• When a party receives a preservation demand letter
• When a claim is threatened
• When circumstances make litigation foreseeable (even without explicit notice)

For example, a trucking company involved in a serious crash knows litigation is likely—even before anyone contacts them. Their duty to preserve ECM data, driver logs, and maintenance records begins immediately.

Types of Evidence Frequently Spoliated

Evidence destruction occurs in many forms:

Electronic Evidence

• Vehicle "black box" and ECM data
• Surveillance footage
• Cell phone records and text messages
• Email communications
• GPS and telematics data
• Computer files and databases

Physical Evidence

• Vehicles involved in crashes (sold, repaired, or scrapped)
• Defective products (returned to manufacturer or destroyed)
• Equipment involved in workplace injuries
• Clothing and safety equipment

Documentary Evidence

• Maintenance and inspection records
• Personnel files and performance reviews
• Incident reports
• Policies and procedures (especially when "updated" after incidents)

Oklahoma's Spoliation Remedies

When spoliation occurs, Oklahoma courts have several remedies available:

Adverse Inference Instructions

The most common remedy is instructing the jury that it may presume the destroyed evidence was unfavorable to the spoliating party.

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 be case-changing. It allows the jury to fill evidentiary gaps with assumptions harmful to the spoliator.

Exclusion of Evidence

Courts may 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 version of what that evidence would have shown.

Monetary Sanctions

Courts can award attorney fees and costs incurred because of spoliation, including expenses for:

• Motion practice to address spoliation
• Expert witnesses to reconstruct destroyed evidence
• Additional discovery made necessary by spoliation

Default Judgment or Claim Dismissal

In extreme cases involving intentional destruction of critical evidence, courts may enter judgment against the spoliating party entirely. This remedy is rare but available for egregious conduct.

Independent Tort Action

Oklahoma recognizes some circumstances where spoliation may give rise to an independent cause of action—a separate lawsuit for damages caused by the evidence destruction itself.

Proving Spoliation

To obtain spoliation sanctions, you typically must establish:

1. The evidence existed and was relevant to your claims
2. The spoliating party had a duty to preserve the evidence
3. The evidence was destroyed or made unavailable
4. The destruction was intentional or negligent
5. You were prejudiced by the loss of the evidence

The Prejudice Requirement

You must show the destroyed evidence would have helped your case. Courts won't impose sanctions for destroying evidence that wouldn't have mattered anyway.

However, when someone destroys evidence, proving exactly what it would have shown is often impossible—which is exactly why adverse inference instructions exist. If we could prove what the evidence showed, we wouldn't need the evidence.

Preventing Spoliation: Preservation Demands

The best defense against spoliation is aggressive, early preservation demands. Immediately after an accident:

• Send written preservation letters to all potential defendants
• Specifically identify evidence to be preserved
• Note that litigation is anticipated
• Warn of consequences for spoliation

This puts defendants on clear notice of their duty and makes any subsequent destruction harder to excuse as innocent.

Common Spoliation Scenarios

Trucking Accidents

Trucking companies frequently "lose" ECM data, driver logs, and maintenance records. Modern trucks contain extensive electronic data that can prove speed, braking, hours of service, and mechanical conditions—all of which trucking companies control.

Premises Liability

Stores and businesses routinely recycle surveillance footage on 30-day loops. When an incident occurs, they know to preserve relevant footage. "Routine deletion" after an incident isn't routine—it's spoliation.

Product Liability

Manufacturers often try to recover defective products, claiming they need them for "investigation." Once in manufacturer hands, products frequently disappear or are "tested to destruction."

Employment Cases

Employers delete emails, modify personnel files, and "update" policies after adverse employment actions. When documents that should exist don't, spoliation may have occurred.

We Take Spoliation Seriously

When defendants destroy evidence, we pursue every available remedy. Spoliation often indicates the destroyed evidence was harmful to the defendant—and courts recognize this.

If you've been injured and suspect evidence is being destroyed, contact us immediately. Time is critical in preserving evidence, and we can send preservation demands the same day you call.