Evidence: A Lesson in Preservation

November 28, 2012

A recent unpublished decision from the Wisconsin Court of Appeals reminds parties to litigation that they must preserve evidence. In Wagner Dairy Farms, LLC v. Tri-County Dairy Supply, Inc., Wagner Dairy sought damages for harm to its dairy herd that they alleged had been caused by milking equipment manufactured by WestfaliaSurge and sold and installed by Tri-County Dairy Supply. The trial court dismissed Wagner Dairy’s claims because they replaced and reconfigured the milking equipment that was the subject of the lawsuit.

Wagner Dairy conducted testing on the milking equipment and pulsation system in May, July, and August 2009. In July and August 2009, they replaced the existing pulsation system with a new system. They filed a lawsuit in October 2009 and then made additional changes to the milk line, pumps and receivers, reduced the vacuum system, and added a third pulsator airline. In addition to altering the setup of the milking equipment, Wagner Dairy discarded some of the wiring that had been used during the August 2009 testing.

No representatives of Tri-County or WestfaliaSurge were notified or present for any of the testing done by the Wagners’ experts prior to the initiation of this lawsuit. Nor was the respondents’ expert given any opportunity to examine, measure, or test the performance of the milking system or pulsation equipment before it was replaced, restructured, and/or discarded.

A party or potential litigant has a duty to preserve evidence essential to a claim that is being or likely will be litigated. The intentional destruction, alteration, or concealment of such evidence is known as spoliation. In deciding whether spoliation occurs, the court looks at whether litigation was already pending or was a distinct possibility and whether the destroyed material would be relevant to that pending or potential litigation.

In the Wagner Dairy case, litigation was already pending when the equipment was replaced and reconfigured. The milking equipment and the setup of the system itself was very relevant to a case where the very same equipment and system was the subject of the lawsuit. The case was dismissed as a sanction for destroying the evidence.

Bottom Line

This decision illustrates the importance of preserving evidence in a lawsuit even if one sees a pressing need to address the perceived problem, whether demolishing and rebuilding a home, repairing a damaged vehicle, or replacing equipment. Even if a lawsuit is never filed, it is best to place everyone on notice of changes or destruction so inspection and testing can occur.

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