Q & A: Spoliation Q. “When an employee is injured due to faulty equipment or machinery, does the employer have to preserve the equipment as evidence?” A. There is no simple answer to this question and it varies by state. In some cases, the employee can file a separate Tort and the Exclusive remedy under Worker’s Compensation may not prevail. Lawyers and courts use the term spoliation to refer to the intentional or negligent withholding, hiding, alteration or destruction of evidence relevant to a legal proceeding. The theory of the spoliation inference is that when a party destroys evidence, it may be reasonable to infer that the party had consciousness of guilt or other motivation to avoid the evidence. Therefore, the fact finder may conclude that the evidence would have been unfavorable to the spoliator. However, only some jurisdictions recognize this as a tort – for example, Pennsylvania does not. If the state follows this doctrine and an employee is injured by faulty equipment, the insured would not be able to make repairs and continue to use the equipment until such time as the other party could conduct its investigation. Or possibly, they might be able to have significant documentation and photos done before making the repair. It is best to check with your attorney and examine state case law as to what has to be done to protect the evidence.