Catanese & Wells, A Law Corporation provides a quarterly newsletter to the equine industry of and concerning legal, tax and business issues for participants in the horse business or sport. www.cataneselaw.com.
This issue of the Equine Legal Summary focuses on the preservation of evidence prior to the filing of a lawsuit by a plaintiff. In many cases the astute and careful preservation of evidence may be the difference between success or failure at trial or arbitration.
When horse disputes occur most of the time they involve witness testimony more frequently than documentary evidence. This occurs because the horse industry is one involving trust between persons and based upon a custom and usage which emphasizes “hand-shake” deals and transactions involving trusted persons such as trainers, veterinarians and bloodstock agents.
At the outset of any dispute the witnesses should be interviewed. Assuming the witness is willing, a carefully drafted declaration or affidavit of the witness should be obtained. Keep in mind that a declaration or affidavit is “hearsay” and not admissible at trial unless the declaration falls within an exception to hearsay such as impeachment. However, these declarations and affidavits can be used in support of pre-trial motions. Oftentimes they are useful in motions for the recovery of horses or other emergency situations. And, declarations and affidavit of third persons can be used to convince the oppositions that the cause should settle and not be litigated based on the evidence. However, even when these declarations and affidavits are obtained from third parties, it does not mean the third party will not change their testimony in a later deposition due to a variety of factors – the most common factor being they do not want to be in the middle of a dispute. That said, even if they change their testimony in the deposition the prior declaration or affidavit can be used to establish the facts through the witness by confirming they signed the declaration and affidavit and they understood the content of the document.
In addition to the above, it is also very useful to undertake an extensive internet investigation of the facts and circumstances. This type of investigation normally reveals useful information on public Facebook pages, blog pages, and marketing pages. Moreover, there are video clips that can be found on YouTube and other sources on the internet without charge. In addition, there are also paid or subscription internet sites that allow for the recovery of videos showing horses in competition. It is imperative that all of this information be printed, re-recorded and preserved since most to the information will be deleted from the internet once a party is in litigation and they become aware of the litigation claims.
In most jurisdictions, there are laws which disallow the destruction of evidence after a lawsuit has been filed and served on the parties. This prohibition applies to all parties, not just defendants. California has a very strict statute which prohibits the destruction or spoliation of evidence. If this were to be established the trial court has discretion to strike a complaint or an answer of a party thereby giving the other party immediate judgement. [See Cedars-Sinai Med. Ctr. V. Sup.Ct. (Bowyer) (1998) 18 Cal. 4th 1, 12; see also Kronisch v. United States (2nd Cir. 1998) 150 F.3d 112, 130.]
To conclude, if you know you will be involved in litigation, make best efforts to preserve evidence by means of documents, recordings, and witness statements. Such efforts at the beginning of a case will greatly contribute to a successful outcome in litigation.
For further questions regarding the doctrine of assumption of risk or other equine legal issues, feel free to contact our offices at email@example.com or (818) 707-0407.