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"TopWhen one party destroys evidence before trial, courts become concerned
that the other party will not be able to obtain justice. In Georgia –
and indeed, throughout the United States, we have a concept called “spoliation.”
Spoliation is the destruction of evidence. As a Fulton County product
liability lawyer, I always tell my clients to save the product that hurts
them. “Don’t let it get out of your hands!”, I tell them.

But when a Georgia court is faced with the destruction of evidence, it
has to decide what to do. As I discussed in my last Marietta personal
injury lawyer blog post, the court has three choices: it can read the
jury a “charge”, or “instruction”, about spoliation;
it can exclude testimony about the missing evidence; and it even can dismiss the case.

The first remedy is traditional, and is provided for by a Georgia statute.
The second two are more serious, and are the courts’ way of leveling
the scales when the trial simply cannot be fair without the evidence.
But how does a Georgia court decide which remedy to use in a particular case?

Citing a Maryland case, Northern Assurance Co. v. Ware, 145 F.R.D. 281
(D. Me. 1993), the Georgia Court of Appeals held that a trial court should
consider five factors as it decides what to do when one party has spoliated
relevant evidence:

(1) whether the defendant was prejudiced as a result of the destruction
of the evidence; (2) whether the prejudice could be cured; (3) the practical
importance of the evidence; (4) whether the plaintiff acted in good or
bad faith; and (5) the potential for abuse if expert testimony about the
evidence was not excluded.

Chapman v. Auto Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996).

Except for the fifth factor, these five factors are fairly universal across
the United States. An A.L.R. annotation on spoliation lists essentially
the same factors (with the exception that the fifth factor is described
as “the deterrent effectiveness of the court’s action compared
to a lesser sanction.” Richard E. Kaye, Annotation, Effect of Spoliation
of Evidence in Product Liability Action, 102 A.L.R.5th 99 (2002)).

In fact, a good argument can be made – and I made the argument in
an article I wrote for the Georgia Bar Journal — that factors (3)
and (5) are just ways of restating factors (1) and (2). (You can download
the article here.) I believe that the Chapman court suggested that it
agreed with my view when it explained that: “we therefore remand
for the court’s determination as to Auto Owners’ good or bad
faith, whether it should have made appropriate arrangements to prevent
the destruction until a reasonable period of time after it filed suit,
and whether the prejudice to Chapman can be cured.” Chapman v. Auto
Owners Insurance, 469 S.E.2d 783, 220 Ga. App. 539 (1996).

I handle Decatur car accident lawsuits, and car wreck cases throughout
Georgia. In those types of cases, the issue of spoliation seldom rears
its ugly head.

The problem is much more common in the Georgia product liability cases
and Gwinnett County product liability lawsuits that I handle.


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