When one party destroys evidence before trial, courts become concerned that the other party will not be able to obtain justice. In Georgia - and indeed, throughout the United States, we have a concept called "spoliation." Spoliation is the destruction of evidence. As a Fulton County product liability lawyer, I always tell my clients to save the product that hurts them. "Don't let it get out of your hands!", I tell them.
But when a Georgia court is faced with the destruction of evidence, it has to decide what to do. As I discussed in my last Marietta personal injury lawyer blog post, the court has three choices: it can read the jury a "charge", or "instruction", about spoliation; it can exclude testimony about the missing evidence; and it even can dismiss the case.
The first remedy is traditional, and is provided for by a Georgia statute. The second two are more serious, and are the courts' way of leveling the scales when the trial simply cannot be fair without the evidence. But how does a Georgia court decide which remedy to use in a particular case?
Citing a Maryland case, Northern Assurance Co. v. Ware, 145 F.R.D. 281 (D. Me. 1993), the Georgia Court of Appeals held that a trial court should consider five factors as it decides what to do when one party has spoliated relevant evidence:
(1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.
Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996).
Except for the fifth factor, these five factors are fairly universal across the United States. An A.L.R. annotation on spoliation lists essentially the same factors (with the exception that the fifth factor is described as "the deterrent effectiveness of the court's action compared to a lesser sanction." Richard E. Kaye, Annotation, Effect of Spoliation of Evidence in Product Liability Action, 102 A.L.R.5th 99 (2002)).
In fact, a good argument can be made - and I made the argument in an article I wrote for the Georgia Bar Journal -- that factors (3) and (5) are just ways of restating factors (1) and (2). (You can download the article here.) I believe that the Chapman court suggested that it agreed with my view when it explained that: "we therefore remand for the court's determination as to Auto Owners' good or bad faith, whether it should have made appropriate arrangements to prevent the destruction until a reasonable period of time after it filed suit, and whether the prejudice to Chapman can be cured." Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996).
I handle Decatur car accident lawsuits, and car wreck cases throughout Georgia. In those types of cases, the issue of spoliation seldom rears its ugly head.
The problem is much more common in the Georgia product liability cases and Gwinnett County product liability lawsuits that I handle.
