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"MissingAs a
Cobb County personal injury lawyer, I write this blog for my clients in Cobb County and all around the state
of Georgia. I have been blogging on the subject of spoliation, which is
a legal doctrine that deals with the destruction of evidence that could
have been critical to a case.

Courts have traditionally punished spoliation by applying a presumption
that the destroyed evidence was adverse to the party that destroyed it.
In other words, the court instructed the jury that it could presume that
the missing evidence would have been negative to the party that had last
had the evidence. To read more about the presumption, please take a look
at my February 8, 2012 post,
Georgia Law on Spoliation of Evidence: What the “Presumption” Means. Recently the Georgia Court of Appeals expanded the remedies for spoliation,
going beyond the traditional presumption. The trial court has great discretion
in choosing which remedy to apply.

Until 1996, the primary, or perhaps only, remedy for spoliation was for
the court to read a charge based on the spoliation statute. In a
Spalding County fire lawsuit, however, the court expanded the remedy. In
Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996), the court wrote that “in
certain circumstances, allowing the case to proceed or an expert to testify
about destroyed evidence which the opposing party is unable to test may
result in trial by ambush which cannot be cured by a jury instruction.”
The Chapman court concluded that “where a party has destroyed evidence
which may be material to ensuing litigation, the trial Judge may be authorized
to dismiss the case or prevent that party’s expert witnesses from
testifying in any respect about the evidence.” The trial court had
full discretion to choose how to handle the spoliation issue.

Today, Georgia courts have three remedies for spoliation of evidence. In
order to remedy the prejudice resulting from the spoliation of evidence,
a trial court can choose from three options. The court may use the traditional
remedy of “charg[ing] the jury that spoliation of evidence creates
the rebuttable presumption that the evidence would have been harmful to
the spoliator.” The court also could: “(2) dismiss the case;
or, (3) exclude testimony about the evidence.”
R.A. Siegel Co. v. Bowen, 246 Ga. App. 177, 539 S.E.2d 873 (Ga. App. 2000) (citing Chapman)

The third option that Siegel mentions — “exclud[ing] testimony”
— is actually much broader than it might sound. In addition to excluding
testimony, the court can grant “issue preclusion” —
essentially issuing a decision on certain issues in the case. The Siegel
case involved a Calhoun, Georgia tractor-trailer accident, in which a
large truck had rear-ended a car driving on Interstate 75 near Calhoun,
Georgia. The insurance company had destroyed the automobile that had been
involved in the accident. Because of the spoliation, the trial court excluded
the Defendant’s expert testimony as to how the collision occurred,
which had been based on the condition of the missing Mercedes.

So how does a court select which option to take? The Chapman court directed
the courts’ attention to the “malice” that was involved
in the spoliation. It approvingly cited a U.S. district court case, which
had said: “dismissal should be reserved for cases where a party
has maliciously destroyed relevant evidence with the sole purpose of precluding
an adversary from examining that relevant evidence.” Northern Assurance
Co. v. Ware, 145 F.R.D. 281, 282, n.2 (D. Me. 1993).