Records Retention and Reporting
You are a private investigator in Alabama. You conducted an investigation for a client, a retail store, regarding an employee theft. You gathered evidence, including witness statements, video recordings, and photographs. You provided a report to the client and closed the case. Two years later, the client is sued by the former employee for defamation and malicious prosecution. The client's attorney requests your entire file, including your notes and any evidence you collected. You have a policy of destroying files after one year to save space. You destroyed most of the file, but you still have the final report and some photographs. You also have a copy of the video recording on your computer. The attorney asks you to produce everything you have. You are concerned about the destruction of the file and whether you have an obligation to preserve evidence. You also wonder if you should have retained the file longer.
1. Discuss your obligations regarding records retention and the production of documents. What are the potential consequences of destroying the file?
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Private investigators in Alabama are not subject to specific statutory records retention requirements like some other professions, but they must comply with general laws regarding evidence preservation and may be subject to ethical obligations. Once litigation is reasonably anticipated, a duty to preserve relevant evidence arises. In this case, the client is now being sued, and the lawsuit relates to the investigation you conducted. You had a duty to preserve evidence once litigation was anticipated. However, you destroyed the file after one year, before the lawsuit was filed. The key question is whether you had notice of potential litigation at the time you destroyed the file. If the employee had threatened litigation or if the circumstances suggested that a lawsuit was likely, you may have had a duty to preserve. The fact that you destroyed the file according to a routine policy may be a defense, but if you destroyed it in bad faith or with notice of litigation, you could face sanctions for spoliation of evidence. Spoliation can result in adverse inference instructions to the jury, exclusion of evidence, or even a separate tort claim. You should produce everything you have, including the final report, photographs, and video. You should also document what was destroyed and why, and be prepared to testify about your retention policy. You should not attempt to conceal the destruction. You should consult with an attorney about your obligations.
2. What should you do now to comply with the attorney's request and protect yourself from liability?
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You should immediately gather all remaining materials related to the investigation, including the final report, photographs, video, and any correspondence. You should provide copies to the attorney, but keep the originals. You should also provide a written statement explaining what was destroyed, when, and why, and describe your records retention policy. You should not destroy any additional materials. You should consult with your own attorney about the potential for a spoliation claim. If you have malpractice insurance, you should notify your insurer. You should also consider whether you have an obligation to inform the client about the destruction. You should cooperate fully with the attorney's request and be transparent. If you are asked to testify, you should testify truthfully. You should also review your records retention policy to ensure that it complies with legal requirements and that you preserve files when litigation is anticipated. You may want to implement a litigation hold procedure. Finally, you should document all actions you take in response to the request.