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"ShreddedI live in Atlanta, Georgia and practice
Georgia personal injury law. I have been blogging about a legal concept called “spoliation”,
which is the destruction of legal evidence that could have been used in
a lawsuit. I started off with a legal blog entry talking about the law
and its origins, and then in a second blog entry I discussed
O.C.G.A. § 24-4-22, the Georgia statute about spoliation. In my third personal injury blog
post on spoliation, I talked about the reason that courts punish spoliation,
and in the fourth I discussed the court’s concern that a party not
be charged with spoliation if the party did not have custody or control
of the evidence.

In today’s entry, I want to talk about what happens when a party
is accused of spoliation. In legal matters, courts sometimes grant summary
judgment, meaning the court decides before the jury trial starts that
the law is so clear on an issue that the issue simply has to be decided
a certain way. In those cases, the judge determines the matter and the
jury never even hears evidence about it.

Generally spoliation is not decided as a matter of law: the jury, not the
judge, should decide the spoliation issue. For example, in a Georgia product
liability case, the court ruled that: “The presumption raised by
the withholding, suppression or spoliation of evidence is however, one
of fact and not one of law. It may be rebutted and it is generally for
the jury to say whether that has been done. Brothers v. Horne, 140 Ga.
617 (3) (79 S.E. 468).”
Glynn Plymouth v. Davis Chrysler Motors, 170 S.E.2d 848, 120 Ga. App. 475 (1969), aff’d, 226 Ga. 221, 173
S.E.2d 691 (1970).

For example,
Jones v. Krystal Company, 231 Ga. App. 102, 498 S.E.2d 565, was a Georgia personal injury lawsuit.
The plaintiff had been injured in an elevator fall. Under Georgia law,
the elevator owner was supposed to leave the elevator as it was until
the state could inspect the elevator. Instead, the owner brought in an
elevator company that serviced the elevator. The Court agreed that the
destruction of the evidence was spoliation that led to a rebuttable presumption
that the evidence – before it was altered — had favored the
plaintiff who had fallen in the elevator. However, the presumption was
rebuttable: “The presumption arising from suppression of evidence
is one of fact, not of law.” Jones v. Krystal Company, 231 Ga. App.
102, 498 S.E.2d 565 (Ga. App. 1998) (citing Glynn Plymouth). See also
Lane v. Montgomery Elevator Company, 484 S.E.2d 249, 225 Ga. App. 523
(1997). For that reason, the court refused to grant summary judgment.

In some cases, where the spoliation left plaintiff without an essential
element of his case, courts have granted summary judgment or directed
a verdict against the plaintiff. See, e.g.,
Bennett v. Associated Food Stores, Inc., 165 S.E.2d 581, 118 Ga. App. 711 (1968) (approving directed verdict for
defendant where plaintiff had destroyed records, after filing suit, that
would have helped calculate damages; plaintiff had no figures, and therefore
failed to carry his burden of proof).


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.