One of the major hurdles we face in litigation is making sure that all relevant evidence is uncovered, analyzed and preserved.  For example, after a tractor trailer wreck, the trucking company may send its representatives to the scene to analyze the wreck and take photographs and measurements.  But sometimes a company or person may fail to preserve evidence, such as videotapes that get “lost” or important documents that somehow fall into a shredder rather than the file where they belong.

What is spoliation?   Under Georgia law, the failure to preserve evidence can result in something called “spoliation” of evidence.  Spoliation is the destruction of evidence or the failure to preserve evidence that is necessary to contemplated or pending litigation.  If a person or entity commits spoliation, the jury can be informed that they may believe that the evidence that was destroyed or not preserved was harmful to that person or entity.  This can be very important in trials, since most parties don’t like the idea of a judge telling a jury that it may believe that party destroyed evidence.

Contemplated Litigation vs. Contemplated Liability:  In a recent case, Watts & Colwell v. Martin (Ga. App., Nov. 29, 2011), the Court of Appeals drew a clear distinction between pending liability and pending litigation, and noted that it is only notice of pending or contemplated litigation that is relevant to spoliation.  So a company preparing an incident report after an injury, by itself, does not constitute spoliation.  In the Watts case, a door hinge that a property manager had taken possession of was lost and the Court of Appeals said that this also did not constitute spoliation.

What To Do?  It seems more important than ever to make sure that “spoliation letters” be sent to defendants in many cases where spoliation may become an issue, and that those letters make it clear that litigation is contemplated, rather than just saying that liability is possible or contemplated. Of equal importance is the need and the duty to preserve all evidence so the jury can have all the information needed to make its decisions.