Here are some of the pertinent sections of NFPA 921-2004 Chapter 11 which apply to the investigator’s notes (EMPHASIS ADDED).

11.3.5 Spoliation of Evidence. SPOLIATION OF EVIDENCE REFERS TO THE LOSS, DESTRUCTION, OR MATERIAL ALTERATION OF AN OBJECT OR DOCUMENT THAT IS EVIDENCE OR POTENTIAL EVIDENCE IN A LEGAL PROCEEDING BY ONE WHO HAS THE RESPONSIBILITY FOR ITS PRESERVATION. Spoliation of evidence may occur when the movement, change, or destruction of evidence, or the alteration of the scene significantly impairs the opportunity of other interested parties to obtain the same evidentiary value from the evidence, as did any prior investigator.

11.3.5.1 Responsibility. THE RESPONSIBILITY OF THE INVESTIGATOR (OR ANYONE WHO HANDLES OR EXAMINES EVIDENCE) IS EVIDENCE PRESERVATION, and the scope of that responsibility varies according to such factors as the investigator’s jurisdiction, whether he or she is a public official or private sector investigator, whether criminal conduct is indicated, and applicable laws and regulations. However, Regardless Of The Scope And Responsibility Of The Investigation, Care Should Be Taken To Avoid Destruction Of Evidence.

11.3.5.2 Documentation. Efforts to photograph, document, or preserve evidence should apply not only to evidence relevant to an investigator’s opinions, but also to evidence of reasonable alternate hypotheses that were considered and ruled out.

11.4 Pretrial Legal Considerations.
11.4.1 Introduction. Between the time an investigation is concluded and the time the matter comes to trial, there may be legal proceedings to determine whether a case should go to trial, and if so, what objects, Documents, facts, or opinions will be allowed as evidence. Many of these proceedings can be categorized as “discovery.” These proceedings occur primarily in civil cases, but may be available in criminal cases in some jurisdictions. While governed by legal rules, there is usually not a judge involved in this part of the litigation, unless the parties are unable to resolve a particular issue.

11.4.2 Forms of Discovery. DISCOVERY IS THE PROCESS OCCURRING DURING THE PRETRIAL PHASE OF A LEGAL PROCEEDING WHERE EACH PARTY TO THE LITIGATION OBTAINS INFORMATION, DOCUMENTS, AND EVIDENCE FROM OPPOSING PARTIES OR NONPARTIES TO BE USED IN PREPARING FOR TRIAL. Discovery, which is governed by court rules applicable to the jurisdiction in which the case is pending, can take several forms.

11.4.2.1 Request to Produce. A Request to Produce is a written demand on another party or witness requesting that certain documents be produced. Usually, when a Request is made on a nonparty, it will be accompanied by a subpoena. THE REQUEST OR SUBPOENA WILL IDENTIFY SPECIFIC DOCUMENTS OR CATEGORIES OF DOCUMENTS TO BE PRODUCED AND WHEN AND WHERE THE DOCUMENTS MUST BE PRODUCED.

11.4.2.3.2 Discovery Depositions.
(A) A discovery deposition is one that is taken to learn or discover what facts, opinions, or information a witness has. The attorney who requested the deposition will begin the questioning. Often, but not always, after the first attorney is finished asking questions, the attorneys for the other parties may also ask questions. In general, the strategy in a discovery deposition is to learn all of the facts and opinions that a witness has, THE CONTENTS OF THE WITNESS’S FILE, the bias, if any, of the witness, and what testimony the witness may offer at trial. If the witness later testifies at trial in a way different from or inconsistent with his deposition testimony, the deposition testimony may be used to impeach the witness.

( Discovery depositions may cover a wide range of topics, including the witness’s background, training, experience, qualifications, and the METHODOLOGIES USED BY THE WITNESS IN FORMULATING ANY EXPERT OPINIONS…

11.5.2.2 Documentary Evidence. Documentary evidence is any evidence in written form. It may include business records such as sales receipts, inventory lists, invoices, and bank records including checks and deposit slips; insurance policies; personal items such as diaries, calendars, telephone records; fire department records such as the fire investigator’s report, THE INVESTIGATOR’S NOTES, the fire incident report, witness statement reduced to writing; or any law enforcement agency reports, including investigation reports, police officer operational reports, fire or police department dispatcher logs; division of motor vehicle records; written transcripts of audio- or videotape recordings. ANY INFORMATION IN A WRITTEN FORM RELATED TO THE FIRE OR EXPLOSION INCIDENT IS CONSIDERED DOCUMENTARY EVIDENCE.

Pat Kennedy, CFEI, CFPS, MIFireE
Fire and Explosion Analyst
Sarasota, Florida
[www.kennedy-fire.com]