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"ChainedI have been blogging about a legal topic called “spoliation”,
which is the willful destruction or withholding of evidence. As a
Georgia personal injury lawyer, I sometimes have to deal with situations where the defendant has destroyed
evidence that I need in order to present my client’s case.

Here in Georgia, the courts take the issue very seriously, as does the
Georgia state legislature. We have a state statute that allows the jury
to presume that if a party does not produce evidence that it could or
should have, then it must be that the evidence would have hurt that party’s case.

Yesterday I talked about how the presumption works, and I gave the example
of a trucking accident lawsuit where the trucking company destroyed the
log books and truck inspection reports that could have been critical evidence
about the negligence of a trucking company that led to a truck crashing
into a car. The presumption is so strong that: “[i]t is irrelevant
which party has the burden to produce evidence, because the public policy
favors producing evidence from which the fact finder can determine where
the truth lies.”
Jones v. Krystal Company, 231 Ga. App. 102, 498 S.E.2d 565 (1998) (citations omitted).

Today I am going to write about why the courts and the legislature take
the issue so seriously. Courts and the legislature are sensitive to spoliation
because it seems particularly unfair to let one party profit by destroying
evidence. For example, in
Horton v. Eaton, 452 S.E.2d 541, 215 Ga. App. 803 (1994), the emergency room X-ray requisition
form had “mysteriously disappeared” from the defendant doctor’s
files. The form was all-important to the Georgia medical malpractice lawsuit:
if it said that the patient had neck pain, then by his own expert’s
admission the doctor would be held to a higher standard; if the form merely
stated what type of accident the plaintiff had had, the doctor would be
held to a lower standard. Despite the fact that the form was missing,
the trial court allowed the defendant doctor to testify about what, in
his experience, the forms typically said (i.e., that the forms typically
only contained a description of the type of accident). The court concluded
that allowing the doctor’s testimony was error:

By allowing such guess-work testimony, the trial court permitted Dr. Eaton
to benefit from his omission of record and memory by blocking the Hortons’
efforts to get at the true contents of the X-ray requisition form while
giving him the benefit of an unimpeachable version of the contents of
the X-ray requisition order, i.e., a version which happens to favor Dr.
Eaton’s claim that he employed the requisite standard of care in
diagnosing Mr. Horton’s X-rays.

Id. The question, then, is one of fairness. If one party fails to produce negative
evidence, then the result is always that the party benefits – and
it simply isn’t fair for that to happen. (Of course, the presumption
can be rebutted – in a later post I will discuss how a party can
show that the destruction of evidence was not willful and should not be
held against him.)

In
Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996), the expert for one side had
gotten to see the evidence before it was destroyed. The court would not
let the expert testify, concluding that it would be especially unfair
to allow an expert to place himself “in the position of being the
only expert with first-hand knowledge of the physical evidence on which
expert opinions as to . . . causation may be grounded.”
Id., quoting Nally v. Volkswagen of America, 405 Mass. 191, 539 N.E.2d 1017 (Mass. 1989).