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The Bass-Davis case, of 2006, gives us insight as to when we may expect to receive an adverse inference that evidence lost by the opposing party was in fact evidence that would otherwise been adverse had it been presented to the jury.

In Bass-Davis, appellant Kimberly Bass-Davis slipped and fell at a 7-Eleven convenience store. Following the fall Kimberly requested surveillance footage from the franchisee. As it turned, per testimony at trial, this, the video surveillance footage, was lost somewhere in transmission between the franchisee and the insurer. The trial court refused to grant an adverse inference against 7-Eleven. The Nevada Supreme Court declared that the district court acted in error as it should have given the jury instructions stating essentially that they, the jury, could have made an inference that such lost evidence would have been unfavorable to the defendant.

The court distinguished cases wherein evidence was negligently lost or destroyed vs. evidence which was willfully suppressed. Essentially when evidence is merely lost by way of negligence then it is appropriate for the court to issue an adverse inference jury instruction. However when it can be shown that evidence was willfully suppressed with the intent to harm the other party then the court can issue a jury instruction stating essentially that such willfully suppressed evidence creates a rebuttable presumption that the evidence would be adverse if it was produced.

The court also discussed when a party is on sufficient notice. This notice causes a rise in duty to preserve evidence. Essentially parties are required to preserve documents, tangible items, and information relevant to litigation, that are reasonably calculated to lead to the discovery of admissible evidence. This duty arises, or a party is on notice, when litigation is reasonably foreseeable.

The second issue before the Supreme Court in the Bass Davis case dealt with collateral source evidence. Part of the plaintiff's claim in the Bass-Davis case was for lost wages. On cross examination the defense inquired as to payments received from the Plaintiff's employer following the accident. The district court allowed this testimony over objection. The Supreme Court found this to be reversible error. Collateral source rule prohibits mention of payments received by the plaintiff from other sources.

Categories: Personal Injury