BC case illustrates when sending a preservation letter to opposing counsel really matters

16 Apr

Sending preservation letters to opposing counsel can be quite a useless exercise when done as a matter of routine. A March 20th decision of the British Columbia Supreme Court illustrates when a hold letter can serve a critical purpose. It also illustrates how a party’s duty to preserve evidence that is likely to be relevant in foreseeable litigation can weigh heavily in favor of allowing an adversary to inspect evidence where no direct duty to allow for such an inspection exists.

The facts are simple. A fire started on the defendant’s premises and spread to the plaintiff’s premises. The defendant denied the plaintiff’s insurer access to its premises, which led the plaintiff’s insurer to write. The insurer said that it would likely bring a subrogated claim and that the plaintiff should preserve all physical and other evidence. This left the defendant with an option to allow the requested inspection or stop cleaning the damaged property and debris. It did neither.

The plaintiff raised a spoliation claim in the context of a production dispute. It claimed that privilege in certain communications should be waived in the interests of justice on account of the defendant’s spoliation. Master Baker of the BCSC agreed.

Hat tip to Seva Batkin of the B.C. Business Litigation Blawg for this one. Seva’s post on the case is here.

Brown v. Wilkinson, 2012 BCSC 398 (CanLII).

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