Whenever one of Stark & Stark’s Construction Litigation Department’s clients advises us that they intend to repair and/or remediate their home, condominium or other structure, it is our typical practice to advise the client to coordinate the repairs and/or remediation through our office. That way, we can ensure that all parties that may have potential liability for the clients’ claims can be notified in a reasonable time to permit them to inspect the condition of the home, condominium or other structure before the existing conditions are changed in any way through the repair process. If such notice is not properly given, there is a possibility that the client’s ability to pursue its claims may be adversely affected through a legal doctrine called spoliation of evidence. The doctrine is, generally, just what is sounds like – a doctrine that provides remedies to aggrieved parties when their ability to defend claims against them has been hampered by the destruction (or spoiling) of evidence. It is also the our practice to advise our clients to retain an engineering expert or other qualified professional to formulate specifications or a protocol for the remediation, provide on-site supervision of the work, as well as documenting the work through video, photographs and personal observation in order to prepare a report summarizing the evidence of damage to the structure discovered during the repair process.

The above is the ideal scenario for preserving evidence of damage to a home, condominium or other structure for use in litigation. We have had clients, however, who were not in a financial position to afford to retain a professional to be present throughout an entire remediation project to document the damage that is found. For those situations, and generally for homeowners or condominium owners who desire to repair and/or remediate their homes immediately, but may not be considering litigation, the firm still recommends that notice of the repair work be provided to all parties that may have potential liability for any defects in question, and that the following protocol, or one like it, be followed in order to preserve evidence of the damage to the structure:

1. Prior to the inception of any work, the condition of the structure should documented by video camera or digital camera showing the date and time of the images recorded. Images should include distance shots of each elevation of the structure and closeup shots of all details on each side of the structure, including window & door details, terminations at ground level and roof lines, areas where flashing exists or should exist, floor lines, joints between dissimilar materials such as wood or stone or vinyl, and all attachments such as light fixtures, gutters, shudders, etc. A record of the photos taken should be maintained so that these photos may be matched with photos taken of the same areas throughout the later stages of remediation.

2. The process of removing whatever part of the structure is being repaired or remediated should be documented via video camera or digital camera showing the date and time of the images recorded. The level of detail of these images should be sufficient to show a time lapse progression of the work on all sides where it exists. A record of the photos taken should be maintained so that these photos may be matched with photos taken of the same areas throughout the earlier and later stages of remediation. Close up photographs should be taken of any notable areas of damage, improper construction detailing, insect infestation, etc. The photographs should be taken close enough to the matter being photographed with the idea in mind that these photos or video will be the only evidence of the condition later on once the structure is completely repaired.

3. Samples should be taken from areas where water damage or other damage is revealed as the work progresses. The samples should be marked with a letter or number. On a separate sheet of paper, for each letter or number there should be a corresponding notation of the date and time of removal, a description of the location of the house the sample was taken from, the name of the individual who removed the sample and the individual who marked the sample. If it is the same individual it should be noted as such. The samples should be wrapped or sealed in a container of some kind to remove the possibility of exposure to ambient conditions altering the condition of the sample over time.

4. Prior to removal and replacement of any damaged sheathing, roofing, windows or other part of the structure, the damaged condition should be documented via video camera or digital camera showing the date and time of the images recorded. As with the initial images, these images should include distance shots and closeup shots of areas where damage is noted, regardless of the severity of the damage. A record of the photos taken should be maintained so that these photos may be matched with photos taken of the same areas throughout the earlier and later stages of remediation.

5. During repair of the damaged areas of the structure, samples of any damaged wood, gypsum sheathing, roofing materials, windows, or other element should be taken from each area where same is replaced. The samples should be marked with the date and time of removal, a description of the location of the house the sample was taken from, and the name of the individual who removed the sample and the individual who marked the sample (if same individual it should be noted as such).

6. All areas where sheathing, roofing, windows or other elements of the structure are replaced with new materials should be documented via video camera or digital camera showing the date and time of the images recorded. A record of the photos taken should be maintained so that these photos may be matched with photos taken of the same areas throughout the earlier and later stages of remediation.

7. The process of installing the new materials, be it a new exterior cladding, windows, roof, etc., should be documented via video camera or digital camera showing the date and time of the images recorded. The level of detail of these images should be sufficient to show a time lapse progression of installation of the new siding on all sides of the home where it is installed. These photos should be identifiable as to the side of the home from which they were taken to be matched to photos described above.

8. The end result of above should be a well documented progression, by video or digital photos or both, of the remediation work from start to finish with a focus on those areas where damage was discovered and repaired.

9. A summary report should be prepared that describes each of the steps outlined above, describes the damage found and the steps taken to repair same, and the steps taken to install the new construction materials. The report should also read as a progression of the remediation from start to finish. In addition, the report should incorporate and refer to the photos and samples taken as outlined above in the appropriate points of the report, identifying same using either numbers or letters. For example, if the report discusses the removal and replacement of damaged wood beneath a window on the east side of the home, there should be a reference to the photos showing the damaged wood and the new wood placed in that area after repair.

10. Finally, the report should also itemize the cost of the remediation from start to finish, breaking the elements out into the labor costs for removing whatever elements of the existing structure was necessary, the labor and materials costs for repairing the damaged wood substrate, the labor and materials costs for re-installing the new construction materials, and any other costs associated with the remediation work (permits, insurance, debris removal, landscaping replacement, mold remediation, etc.).