Have you ever wondered what it actually meant when you heard the phrase “spoliation of evidence” under Georgia law? It’s a good question and a very important consideration in a case, especially one with camera footage and documents. We often times see it come up in semi-truck wrecks and premises liability cases here in Georgia, but before we go into the details, let’s begin by going over the black-letter law.
Spoliation is the “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” FYI — The case to refer to for this basic principle is Phillips v. Harmon, 297 Ga. 386, 393 (2015)
Now keep in mind that there are three main components to it in Georgia:
First, spoliation means that a person or entity either destroyed or decided not to save evidence. For example, evidence can be in the form of a truck driver’s log books that showed (or perhaps didn’t) the driver taking the necessary breaks in the trip. Let’s say that the truck driver knew that he wasn’t following the highway safety standards and then shredded his logbooks right after an accident. That’s a pretty clear example of destroying evidence. Another less egregious, but still very harmful decision is deciding not to save evidence. It can be in the form of a store manager recording over camera footage of a slip-and-fall at a grocery store even though the manager understands that there may be a case against the store. A lot of times a person or company will make this decision to ‘get out of trouble,’ but it ends up creating exponentially more trouble down the road for them because Georgia law imposes very serious consequences, which we will talk more about in our next blog post.
Second, the evidence must be necessary to the litigation. In other words, it must serve an actual purpose in the case, i.e. a a truck driver’s log books show where and when he was traveling leading up to the truck accident. That’s clearly important! The video of a slip-and-fall is important to because it is the best evidence of the incident itself. Instead of making it a “he said v. she said” argument, a jury can just watch the video of the slip-and-fall. There are somethings that obviously aren’t important to litigation so Georgia law doesn’t penalize a person or company for not saving them. Take this example: A person slips at the check-out lane of a grocery store. The back loading dock’s footage doesn’t have anything to do with the fall so the store won’t have to save it unless there is some unusual circumstance or reason. That’s only fair because it would place an undue burden on the store. You simply can’t save everything.
Third, the person in control of the evidence must contemplate litigation or there must already be litigation, which basically means that the person understands that there could be or is a lawsuit. This area of Georgia law has changed a bit over the past couple of years. For those of you interested in the actual case, it’s Phillips v. Harmon, 297 Ga. 396 (2015). The Georgia Supreme Court has now held that as long as litigation, i.e. a lawsuit, is “reasonably foreseeable” a person or company has an affirmative duty to save documents, etc. One other thing to keep in mind is that this duty doesn’t just apply to possible defendants, but also to plaintiffs — the person bringing the lawsuit. For example, if a person is texting and driving and then gets into an automobile accident, then that person can’t delete those text messages either. At the end of the day, Georgia law wants to make sure that everyone is operating from the same basic set of facts.
We’ll talk a bit more about spoliation in our next blog too, but if you have any questions about it in the meantime, especially when it comes to truck accidents or slip-and-falls, please don’t hesitate to reach out to us at kevin@patricktriallaw or (404) 566-8964. We’re here for you!