Evidence is the touchstone of our legal system—it is presented at trial, the jury observes it, and the jury makes its decision based on what the evidence shows. If all the relevant evidence is not presented, the jury cannot make an informed decision and injustice may result. Because of this, it is crucial that evidence be preserved.
What is Spoliation of Evidence?
Spoliation is the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Baxley v. Hakiel Industries, Inc., 282 Ga. 312 (2007). When litigation is contemplated or pending, parties are under an obligation to preserve evidence for use at trial. See Id.
When a party fails to preserve evidence, the court can impose sanctions to remedy the prejudice to the opposing party. Under Georgia law, three sanctions are available: (1) instructing the jury on the principles of spoliation; (2) striking the defendant’s answer; and (3) excluding testimony about the evidence. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844 (2012).
When is Litigation Contemplated or Pending?
Parties must preserve evidence when litigation is either contemplated or pending. The date which litigation becomes contemplated or pending is important. See Paggett v. Kroger Co., 311 Ga. App. 690 (2011).
It is easy to identify when litigation becomes pending; it is the date which the plaintiff files suit. Once the plaintiff files suit, the defense must ensure that all necessary evidence is preserved.
Determining when litigation becomes contemplated can be a bit more difficult, but is equally as important. The crux of determining the correct date is notice of contemplated litigation to the opposing party. Clayton County v. Austin-Powell, 321 Ga. App. 12 (2013).
Putting the Opposing Party on Notice
Because the opposing party must have notice of contemplated litigation before its duty to preserve evidence begins, it is important to place the party on notice as soon as possible. One of the most effective ways of doing this is to send the opposing party what is known as a “Spoliation Letter”. The purpose of this letter is to alert the opposing party that litigation is being contemplated, inform it of its obligation to preserve evidence, and place it on notice that sanctions will be pursued if evidence is lost or destroyed.
The attorneys at Butler Law Firm understand the importance of having all the necessary and relevant evidence presented to the jury, and know how to handle parties that spoliate evidence.
You deserve to have your best case presented to the jury. If you have been injured in a motor vehicle collision, trucking accident, or because of unsafe or dangerous property, contact our attorneys for a free consultation.