Spoliation or Destruction Of Evidence

Spoliation is defined as the destruction or a significant or meaningful alteration of evidence. For many years, in Georgia, spoliation of evidence has given rise to a presumption against the spoliator which has resulted in discovery sanctions in appropriate cases. Many states actually recognize a separate tort of spoliation. However, Georgia courts have not yet embraced that concept.
Spoliation of evidence is actually a type of fraud which interferes with the plaintiff’s opportunity to win a lawsuit. In some cases, it can logically be expanded to include conduct which constitutes negligent spoliation of evidence as well as concealment and destruction of evidence.
The remedy for spoliation is sanctions against the spoliator which may range from exclusion of evidence up to dismissal of a case. In determining the appropriate sanction, the trial court is required to consider:
1. Whether the opposing party suffers prejudice as a result of the destruction of evidence;
2. Whether the prejudice can be cured;
3. The practical importance of the evidence;
4. Whether the spoliator acted in good or bad faith; and
5. The potential for abuse if the evidence was not excluded.
Another remedy for spoliation is to charge the jury under O.C.G.A. § 24-4-22, which creates a rebuttable presumption against a party failing to come forward with evidence in its power or within its reach. In essence, the Court can charge the jury that had the evidence been produced it would have been detrimental to the cause of the spoliator.