Spoliation of Evidence
Spoliation "is the destruction or the significant and meaningful alteration of evidence," so that it is no longer available to a party in pending or future litigation. A spoliator is the individual or entity that causes the spoliation and he or she may be liable to other parties for intentional or unintentional spoliation. The effects of spoliation can be very harsh. Lawsuits can be dismissed, insurers can be denied subrogation claims, an insured who destroys evidence of a claim can have his claim denied due to the inability of the insurer to subrogate, and expert witnesses can be prevented from testifying. In certain states, spoliators even can be held personally liable for committing an independent tort of spoliation. The potential for spoliation always exists when an insurance claim has been made, so this article will explain the basics of spoliation and its legal ramifications.
Spoliation typically arises when one of the parties in a lawsuit tampers with or loses evidence, either intentionally or unintentionally, resulting in prejudice to the opposing party. However, a spoliator does not have to be a party to a lawsuit. For instance, an insurer, an expert witness, a property owner, or even an independent, disinterested third party can cause spoliation. For example, an employee who shreds documents during the night on the top floor of an office building to destroy incriminating evidence clearly has spoliated that evidence. However, a supervisor who discards an inspection report in the ordinary course of business not realizing that the report could be relevant to a future lawsuit may also have caused spoliation. Even a mechanic, who repairs a rear guard on a tractor trailer after the trailer is towed to his shop following an accident can be a spoliator if there has not been sufficient time for both parties to investigate the damage. No matter who causes the spoliation, it can have a dramatic and devastating impact on one's ability to defend a lawsuit. If a court determines that the spoliation has prejudiced one of the parties, it can apply a number of remedies.
Both plaintiffs and defendants can commit spoliation, but for the purposes of this article, we will focus on spoliation by defendants. Depending on the severity of the spoliation, courts typically have three remedies from which to choose: (1) striking the defendant's answer and entering judgment in favor of the plaintiff; (2) excluding testimony about the evidence; or (3) giving the jury an instruction that the spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the defendant. As you can see, these three options are listed in order from the harshest sanction to the lightest sanction. Therefore, an important question for the court will be, which sanction to impose and why.
Courts typically rely on five factors when deciding the appropriate remedy for spoliation: (1) whether the aggrieved party was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice can be cured without sanction; (3) the practical importance of the evidence; (4) whether the spoliating party acted in bad faith; and (5) the potential abuse if testimony about the evidence is allowed. Additionally, the spoliated evidence must be relevant to the plaintiff's cause of action in order for the court to levy sanctions against the spoliator.
Striking a defendant's answer is the harshest sanction and is rarely used. In Georgia there is no reported case where it has ever been used. Such a sanction typical is reserved for situations where a party has maliciously destroyed relevant evidence with the sole purpose of precluding an adversary from examining the evidence. A lighter sanction is the exclusion of testimony concerning the evidence. This sanction has been used by Georgia courts when the defendant's representative allows the destruction of evidence after the opposing side provides notice that the evidence is relevant and requests its preservation. The most common sanction for spoliation, however, is a jury instruction. When documents or evidence in the custody or control of the defendant cannot be located and the defendant cannot provide a valid explanation of why they cannot be produced, the court will instruct the jury to assume during its deliberation that the missing evidence would have been harmful to the defendant. The jury instruction will read something like this: "If a party has evidence in his power and within his reach by which he may repel a claim or charges against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted."
These are the basics of spoliation, but it is also important to know how spoliation is treated in your own state, because it can very widely. For example, in South Carolina and North Carolina, courts put more emphasis on intentional spoliation and it is less likely that sanctions will be levied against an unintentional spoliator. However, in Georgia, a jury instruction can be ordered when it is clear that a party had custody and control over documents or evidence, but the evidence cannot be located and the party does not have a good explanation for its disappearance.
In a minority of states, courts even recognize a separate tort for spoliation. In states such as Connecticut where spoliation laws are the most strict, courts recognize a separate tort for first-party spoliation. This means that the spoliator would not only have to be concerned about the three sanctions listed above, he or she would have to defend a separate cause of action for the spoliation of evidence for which the plaintiff could seek damages. In the Connecticut case Rizzuto v. Davidson Ladders Inc., the court held that "recognition of the tort of intentional spoliation of evidence is necessary to accomplish the goals of compensating the victims of spoliation and deterring future spoliation when a first party defendant destroys evidence intentionally with the purpose and effect of precluding a plaintiff from fulfilling his burden of production in a pending or impending case." While spoliation can be a serious offense in every state, neither North Carolina, South Carolina, Georgia, Tennessee, Alabama, nor Mississippi recognize a separate tort for first-party spoliation.
However, Alabama does recognize a separate tort for third-party spoliation. Thus, a first-party defendant cannot be held liable for a separate claim of spoliation, but the plaintiff can bring a separate claim against a third-party for negligent spoliation. For a plaintiff to be successful in such an action, he or she would first have to show the typical elements of negligence, which are: (1) a duty to the plaintiff by the third-party; (2) a breach of that duty; (3) that breach was the proximate cause of an injury; and (3) that the injury caused damages. However, to win a claim for negligent spoliation the plaintiff in Alabama must additionally prove: (1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, and agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiff's pending or potential action.
Regardless of the specific state provisions regarding spoliation, the driving force behind the concept is that it is unfair for a plaintiff's case to be adversely affected by a defendant's failure to preserve and maintain evidence. Therefore, a defendant will usually argue that the destruction of the evidence was inadvertent and that it would have been preserved if their had been any knowledge about its potential use in litigation.
There are practical steps to consider in order to prevent the issue of spoliation from ever arising. On the plaintiff's side, a practical solution is to send a spoliation letter by certified mail to any potential defendants. A spoliation letter usually lists in detail certain items that have to be maintained or preserved in case of litigation and how these items are related to the plaintiff's cause of action. If you receive one of these letters, be sure to comply with it because it serves to put you on notice and can be used as evidence later if spoliation sanctions are considered.
If you are investigating a claim there are other practical steps to consider. Upon arrival at a scene, photographically document the conditions before you enter the scene and alter it in any way. Log all items and identify the storage location. Log removals and get a receipt to maintain the chain of custody. Do not disassemble or test components unless you follow the proper procedures in the context of that type of claim. Be prepared to store physical items and files indefinitely. Do not allow anyone to inspect items without your client's permission, a court order, or similar authorization, and keep a record of who, when, and where they inspected it.
This article should provide a basic outline of definition of spoliation and it potential legal ramifications. However, if you have a specific question about spoliation as it pertains to your work, be sure to consult an attorney licensed to practice in your state.
 Sharpnack v. Hoffinger Industries Inc., 231 Ga. App. 829, 830, 499 S.E.2d 363 (1998).
 Michael L. Goldberg, Trial Practice Presents: The Spoliation of Evidence.
 R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 180, 539 S.E.2d 873 (2000).
 Chicago Hardware & Fixture Co. v. Letterman, 236 Ga. App. 21, 23, 510 S.E.2d 875 (1999).
 Sharpnack v. Hoffinger Indus. Inc., 231 Ga. App. 829, 831, 499 S.E.2d 363 (1998).
 R.A. Siegel Co. at 182
 O.C.G.A. § 24-4-22.
 Nucor Corp. v. Bell, 251 F.R.D. 191 (S.C. 2008), Holloway v. Tyson Foods, Inc., 668 S.E.2d 72 (2008).
 Tecumseh Products Co. Inc. v. Rigdon, 250 Ga. App. 739, 552 S.E.2d 910 (2001).
 280 Conn. 225, 234-35, 905 A.2d 1165 (2006).
 Smith v. Atkinson, 771 So.2d 429 (Ala. 2000).
 Goldberg, supra at note 2.