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Several yeas ago I wrote an article for the Georgia Bar Journal, the Georgia
State Bar’s legal journal. The article was about spoliation, which
is the reckless or willful destruction of evidence, or refusal to produce
evidence. Thankfully, spoliation is rare, but when it occurs, it is a
very serious problem because it can cause a miscarriage of justice. Since
the time that I wrote that article, I have gotten calls from lawyers all
over the state dealing with spoliation. I am an
Atlanta, Georgia personal injury lawyer and car accident lawyer, but these lawyers handle all different types
of legal cases, as spoliation is not limited to personal injury or product
liability cases.

One key question that these lawyers and I have discussed is: when is a
party responsible for spoliation? The question can be a slippery slope.
For example, in a product liability case, all of the parties want to see
and inspect the product that allegedly was defective.

Let’s say an automobile burst into flames, and the plaintiff files an
automotive product liability case alleging that the car was defective because the fuel tank was in an exposed,
unprotected area. But the vehicle winds up missing. Depending on the circumstances
about how the vehicle wound up missing, the party that had control of
the vehicle may or may not have a presumption applied against him because
of the spoliation.

Under Georgia law, as a rule of thumb, a party is only responsible for
destruction of evidence that was in its custody or control. If the party
did not even possess the evidence, and so had no ability to prevent the
loss, courts are reluctant to punish the spoliator. “The presumption
arises, as in this case, only when the party has evidence within its control,
i.e., employees on duty and details of the last inspection, and fails
to produce the evidence to negate constructive knowledge.”
Jones v. Krystal Company, 231 Ga. App. 102, 498 S.E.2d 565 (Ga. App. 1998).

American Casualty Company of Reading, Pennsylvania v. Schafer, 420 S.E.2d 820, 204 Ga. App. 906 (1992), for instance, a question arose
as to whether one company was formed solely to escape liability for insurance
premiums incurred by another company. The owner of both companies testified
that he had stored the pertinent corporate documents which could have
answered the question, and that a tenant of the building in which the
documents were stored had destroyed them. The court found the key question
was “[w]hether the records were in the custody or control of”
the business owner, because “[i]f it is found that [the business
owner] caused or contributed to the loss of the subject records, a presumption
would be raised against him that the evidence favored [the opposing party’s]
alter ego theory.” Id.

For example, in the automobile fuel tank product liability case that we
discussed above, what if the burned automobile was towed to a junkyard
after the car accident, but a break-in occurred at the junkyard and vandals
smashed the fuel tank area? Or what if the burned car was sitting in the
owner’s locked garage and someone stole it? In both cases, and especially
in the first case, the owner clearly seems less liable for spoliating
the evidence because the owner did not have custody or control of the
vehicle. On the other hand, what if the car was in the owner’s garage
and the garage wasn’t locked? Does that make a difference? That
case would be a harder call. Or what if the owner managed to get the engine
running again, and left the car unlocked, with the engine running, in
a dark area at night? What if the owner put the car outside with a sign
that said, “Please steal me”? As you can see from these examples,
the party who loses the evidence can be more or less responsible depending
on how much custody and control he had over the vehicle.