Spoliation of Evidence at a Fire Scene

Spoliation is the loss, alteration, or destruction of evidence by a party that had a duty to preserve it. In fire investigation it surfaces early. Debris gets cleared, a component gets pulled, a manufacturer never gets to look at the appliance. What the file can prove afterward depends on what was documented and who was invited.

What spoliation means for a fire file

The doctrine turns on knowledge. It applies when a party knew or should have known that physical evidence was relevant to pending or reasonably foreseeable litigation and then failed to preserve it. NFPA 921 addresses spoliation in its treatment of legal considerations. The preservation duty belongs to the party that controls the evidence. Investigators working for that party get questioned on the stand about how the evidence was handled.

Fire scene examination is inherently destructive. Debris has to be moved to reach the floor. Layers have to come apart to read patterns. Components have to be disassembled to be understood. That work is accepted practice when it is documented and when other interested parties had a fair opportunity to participate. It becomes a spoliation problem when a party's evidence disappears without notice.

When the duty to preserve attaches

The duty attaches when litigation is reasonably foreseeable. That point often comes well ahead of a filed complaint. Treat the following as triggers.

• An insurer is paying a loss and holds a subrogation interest.
• A product, appliance, or vehicle system is suspected as an ignition source.
• The fire caused a death or a serious injury.
• Criminal charges are possible.
• A contractor, utility, or installer performed recent work at the property.
• Any party has retained counsel or an expert.
• A preservation letter has been received from anyone.

Preserving the scene before it changes

The scene is the largest piece of evidence in the file. Control of it is the first preservation act.

Suppression and overhaul alter the scene, often before the investigator arrives. Document that condition as found. Record what crews moved, ventilated, or pulled, and get it from the crews themselves while memory is fresh.

• Secure the perimeter and control access. Keep an entry log with names, agencies, times, and purpose.
• Photograph overall, mid-range, and close-up before anything moves.
• Video the walkthrough in original condition.
• Diagram the structure and contents before layering and debris removal.
• Document utilities, appliance positions, and switch and breaker states as found.
• Delay removal of any suspect item until the area of origin work is photographed and diagrammed.
• Coordinate with the property owner before demolition, board-up, or salvage begins.

Notice before destructive examination

Examinations that alter or consume an item call for notice to interested parties that are known or reasonably identifiable. The obligation sits with the party that controls the evidence, and its scope varies by jurisdiction and by how foreseeable litigation is. Identify those parties early. That list typically includes the property owner, the insurer, tenants, the product manufacturer and distributor, installers, service contractors, and any utility involved.

Send written notice with enough lead time for a party to retain its own expert and travel. Keep the notice specific.

• Date, time, and street address of the examination.
• A description of each item to be examined and where it came from.
• The procedures planned, including disassembly, cutting, sampling, or testing.
• A statement of what may be altered, consumed, or destroyed.
• Storage location and access arrangements for the item.
• A named contact and a deadline for a response.
• A record of delivery and any response or non-response.

Joint examinations

A joint examination is among the strongest protections available. All parties observe the same disassembly at the same time. Disagreement then falls on interpretation of a shared record.

Set ground rules before anyone touches the item. Agree on who performs the disassembly, what sequence will be followed, what gets photographed at each step, and what will be retained. Assign one person to handle the evidence. Everyone else observes and photographs.

Stop the examination if a party objects to a step that would consume evidence. Document the objection and resolve it before proceeding. An unresolved objection followed by destruction is the fact pattern most often argued for sanctions.

Documentation as protection

Documentation is what survives after the scene is demolished and the artifact is altered. Build the record so another examiner can reconstruct the sequence without you.

• Sequential photographs at every stage of disassembly, with scale and orientation.
• Written notes with times, conditions, and the identity of every person present.
• Chain of custody entries for each item collected, transferred, and stored.
• Diagrams tied to photograph numbers.
• Non-destructive imaging of components before disassembly where it is available and appropriate.
• Retention of removed parts, fasteners, and fragments in labeled containers.
• Preservation of exemplar and comparison items alongside the evidence.
• Copies of all notice letters, delivery confirmations, and party responses.

What altered evidence costs a claim or a case

Remedies for spoliation vary by jurisdiction and by the degree of fault. They run from instructions given to the jury, through exclusion of testimony and evidence, up to termination of the claim itself.

• An adverse inference instruction telling the jury it may presume the missing evidence was unfavorable.
• Exclusion of expert opinion that relied on the altered or missing item.
• Exclusion of the physical evidence itself.
• Monetary sanctions and fee awards.
• Dismissal of a claim or entry of default in severe cases.
• Loss of a subrogation recovery for the carrier that paid the loss.
• Damage to the investigator's credibility that carries into unrelated files.

Practical steps that keep the problem from starting

• Identify interested parties on day one. Update the list as the investigation develops.
• Send preservation notice before you need it.
• Photograph and video before you move anything, every time.
• Separate scene documentation from artifact examination. Complete the first before starting the second.
• Keep suspect items intact and in secure storage until notice has run.
• Log every person who enters the scene and every item that leaves it.
• Confirm in writing that the owner will hold the scene until the examination is complete.
• Document refusals, denials of access, and demolition ordered by others.
• Write the file so a party who never attended can follow what happened.

Keeping the determination defensible

The record protects the opinion. A documented scene, timely notice, and a joint examination let the determination be tested on its merits. A gap in that record shifts the argument to your conduct.

The origin, cause, and classification determinations are the certified investigator's, made under the qualifications and knowledge requirements of NFPA 1033 and the methodology of NFPA 921. Software, checklists, and report drafting tools organize the record and hold the structure of the report.

Undetermined is always a valid finding. When evidence was altered before it could be examined, say so in the report and state what the alteration prevented. A documented undetermined cause is defensible on cross-examination and gives the investigator a record to testify from. A stated cause built on evidence no other party could examine invites exclusion.

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