Preservation of Evidence: Getting the chain of custody right to avoid spoliation claims

With spoliation of evidence claims on the rise, insurers need to be increasingly aware of steps that must be taken to preserve damaged property.   To better understand this, it is important to first recognize and understand the chain of custody. 

The inception of the chain of custody is the point in time at which evidence is collected and the chain must be maintained until the evidence is disposed of.   Evidence comes in all shapes and sizes, and depending upon the nature of your claim must be cared for in a variety of different ways.   This chain ensures continuity in the accountability and is essential as any break in the chain may invalidate admissibility in court. 

The chain of custody is a chronological written record of those individuals who have had custody of the evidence from its initial acquisition until its final disposition. These persons in the chain of custody must be identified and any person coming in contact with the evidence must be documented.

Ideally there will be an evidence custodian.   It is incumbent upon the custodian to be a steward of the evidence while documenting everything that happens through the lifecycle of the evidence process.   Even more critical is an understanding of the various state laws pertaining to evidence and spoliation thereof, which can leave the custodian liable for damages. 

It is often advisable to utilize an independent Evidence Custodian as this will minimize charges of tampering with evidence.   By securing evidence in an independent location, all parties associated with the claim will have access to the evidence. 

Another key part of the process involves the utilization of Evidence Receipts.   Evidence receipts are provided to those who deposit evidence.   The Evidence Custodian will always retain the original, a second goes to the person depositing the evidence and a third goes to a case file.   Having the ability to electronically retain this documentation and back up in an offsite, secured location is ideal.   

The original chain of custody form becomes a voucher and is given a voucher number when it is presented to the evidence custodian. Number evidence vouchers consecutively from inception to the current date.   This original voucher should not leave the custodian with the exception of submission to a court of law as evidence.  

An Evidence Sub voucher should be utilized to document any changes in the chain of custody that occur when the evidence leaves the evidence room.  Consider a situation in which a mold sample leaves the evidence room with the plaintiff attorney and is turned over to a toxicology expert for analysis, in which case a sub voucher would be utilized.  The number of the sub voucher should reflect the number of the original. 

Disposition of Evidence occurs when the materials in custody are no longer needed at which time the property should be turned over to the proper owner or if unknown to an applicable insurer, state or federal agency. 

As discussed in Re-Adjusted: 20 Essential Rules To Take Your Claims Organization From Ordinary To Extraordinary, the devil is often in the details when it comes to executing claims investigations.   Preservation of evidence is one of the simplest things to do right, yet one of the costliest when execution of basic blocking and tackling falters.    By taking the time to properly educate claims personnel, vendors and associates, insurers can minimize potential losses while protecting crucial evidence to ensure accurate outcomes. 

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Christopher Tidball is a claims consultant and the author of Re-Adjusted: 20 Essential Rules To Take Your Claims Organization From Ordinary to Extraordinary.   His claims experience spans more than twenty years with multiple leading insurance carriers.   His tips for success have been featured on MSNBC, CBS Market Watch, ABC, Yahoo Finance and in the Wall Street Journal and Kiplinger’s.   To learn more about optimizing your organizational results, please visit www.christidball.com or e-mail chris@christidball.com.

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