Process & Workflow
Evidence Preservation and Spoliation in Subrogation
Why preserving evidence is decisive in property and product subrogation, what spoliation is, and the steps that keep a recovery from being lost before it starts.
6 min readUpdated July 27, 2026
In many recoveries, especially property and product-defect claims, the proof of who was responsible is a physical object: a failed appliance, a scorched wire, a defective part. Lose it and you often lose the claim. Preserving that evidence is one of the most time-sensitive steps in subrogation.
What spoliation is
Spoliation is the loss or destruction of relevant evidence. It cuts both ways: if the responsible party destroys evidence, courts can impose sanctions or adverse inferences; if the party pursuing recovery lets key evidence disappear, the claim can fail for lack of proof. Either way, evidence that is gone cannot establish liability.
Steps that protect the recovery
- Identify time-sensitive files early, ideally at first notice of loss, so evidence is secured before a site is cleared.
- Send a notice to preserve to the parties who hold the evidence.
- Secure the physical proof and document its chain of custody.
- Arrange expert examination of the failed component where a defect is suspected.
What happens if evidence is destroyed in a subrogation case?+
That is spoliation. If the at-fault party destroyed it, courts may impose sanctions or allow an adverse inference against them. If the pursuing party lost it, the claim can fail for lack of proof. Preserving evidence protects the recovery either way.
How do you preserve evidence for a product-defect claim?+
Secure the failed product itself, document its chain of custody, send a notice to preserve to the other parties, and arrange for expert examination. Acting early, before the item is discarded, is essential.
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