Spoliation of Evidence

• Publication year: 2003
• Pages: 0001

Georgia Bar Journal Volume 8.

GSB Vol. 8, No. 5, Pg. 1. Spoliation of Evidence

Georgia State Bar Journal
Vol. 8, No. 5, April 2003

"Spoliation of Evidence"

By Lee Tarte Wallace

Spoliation "is the destruction or the significant and meaningful alteration of evidence."1 The word comes from the Latin word spoliare, which means "to plunder."2 The word has "evil connotations, and the dictionaries make it synonymous with pillaging, plundering and robbing."3 A party is responsible for spoliation "when the party has evidence within its control and fails to produce the evidence to negate constructive knowledge."4 A party also may be responsible for spoliation even if a third party disposes of the evidence For example, in American Casualty Company of Reading Pennsylvania v. Schafer,5 a defendant claimed that he stored the key evidence in a building, but that a tenant in the building later destroyed those documents. The court found the defendant company could be responsible for spoliation if its owner "caused or contributed to the loss of the records," and it reversed summary judgment for the defendant.6

Courts are sensitive to spoliation because it seems particularly unfair to let one party profit by destroying evidence. For example, in Horton v. Eaton,7 the doctor's duty turned on the contents of a requisition form that had "mysteriously disappeared" from the defendant doctor's files.8 The trial court admitted the doctor's testimony about the form's typical content but the appellate court found the admission erroneous; admitting the testimony would let the doctor "benefit from his omission of record" by blocking the plaintiff's efforts to discover the truth and by giving the doctor "the benefit of an unimpeachable version of the contents" of the document, a version which "happens to favor" the doctor's position.9

This article will focus on recent judicial developments that expand the remedies for spoliation and the factors courts should consider in choosing a remedy. It also will discuss the problematic case in which the evidence is in the possession of a non-party and offer concrete steps that practitioners can take to protect their clients from spoliation of their key evidence.

THE REMEDIES FOR SPOLIATION

Courts have traditionally punished spoliation by applying a presumption that the destroyed evidence was adverse to the party that destroyed it. Recently, the Georgia Court of Appeals has expanded the available remedies. The trial court has great discretion in choosing which remedy to apply.

The law historically has provided, omnia praesumuntur contra spoliatorem, or "all things are presumed against a despoiler or wrongdoer."10 Georgia case law makes the same presumption: "[s]poliation of evidence raises a presumption against the spoliator."11 This presumption is closely related to the statutory presumption that, if a party fails to produce evidence "in his power and within his reach," then "the charge or claim against him is well-founded."12 The presumption from withholding, suppression or spoliation of evidence is rebuttable, and the jury decides whether it has been rebutted.13 If no effort has been made to rebut a presumption that concerns an essential element of a claim, the court may find against the spoliator as a matter of law.14

In 1996, the court in Chapman v. Auto Owners Insurance Co.15 expanded the remedy beyond a jury instruction on the presumption16:

[W]e find 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. Accordingly, we conclude 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.17

Thus, Georgia courts now have three remedies for spoliation: "a trial court may (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence."18

The appellate court has provided factors, discussed below, for trial courts to use in selecting the appropriate remedy. The court has recognized that the selection is within the trial court's discretion to ensure a fair trial and that appellate review is governed by the abuse of discretion standard.19 That review has been deferential. The Court of Appeals has upheld the exclusion of expert testimony about a product even though all parties were able to inspect it before its destruction. 20 It also has deferred to a trial court that levied a lighter sanction even though the ultimate sanction of dismissal would have been authorized.21 Finally, it has deferred to a decision not to levy a sanction at all in a case in which an anesthesiologist failed to print out vital sign data that would prove or disprove central liability issues.22

THE FIVE FACTORS FOR SELECTING A REMEDY

The Georgia Court of Appeals has provided five factors for a trial court to consider in deciding what action to take when evidence has been spoliated: "(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 [spoliator] acted in good or...