Spoliation

June 5, 2020

postedDuty to Preserve a Car After and Accident in Georgia

by Christopher Simon

Spoliation is a hot button issue in Georgia and defense attorneys have begun sending out spoliation letters is basic car wreck cases insisting the Plaintiff keep the damaged car after an auto accident. Lawyers for the Plaintiff have a tough decision to make. It’s no problem where the Defendant’s own insurance deals with the totaled care because they take possession. The problem arises where the Plaintiff’s own insurance company takes charge of the repairs or salvage. The vehicle is not really under the Plaintiff’s control in that situation and can lead to it going to the crusher without the Plaintiff’s knowledge. In the case we discuss below, the problem is highlighted and the trial court issued the severe sanction of throwing the wrongful death case out of court as a sanction for allowing the car to be destroyed by the wrecker yard. Fortunately, the Court of Appeals reversed the decision and observed that in these facts, the destruction was just negligent and did not deserve the ultimate sanction of having the case thrown out.

The state appellate court issued an opinion in a Georgia car accident case discussing the spoliation doctrine, which can be used by a party to impose sanctions on an opposing party who destroys or fails to preserve relevant evidence in an upcoming trial. The court ultimately determined that although the plaintiff was under a duty to preserve the evidence at issue, because a third party destroyed it without the plaintiff’s knowledge or consent, the lower court was improper to dismiss the plaintiff’s case.

The Facts of the Case

According to the court’s opinion, the plaintiff’s wife was killed in a car accident when she encountered standing water on the highway. Evidently, the woman lost control of the car as it hydroplaned and crashed into another vehicle. It was later discovered that the storm drain that was designed to remove water from the highway was clogged with debris. The plaintiff brought a personal injury lawsuit against the city in charge of maintaining that area of the road.

Evidently, the plaintiff’s vehicle was towed to a scrap yard following the accident. In a letter to the plaintiff, the scrap yard required the plaintiff to pay a storage fee; otherwise, the plaintiff’s vehicle would be destroyed and sold for scrap. The plaintiff retained an attorney, who sent a letter to the scrap yard, introducing himself as the plaintiff’s attorney, and requesting that all future communication be sent to him. The attorney also instructed the scrap yard that the vehicle must be preserved for trial, and that there could be severe sanctions if it was destroyed.

February 27, 2017

Northern District of Georgia Declines to Impose Spoliation Sanctions

by Christopher Simon

The spoliation doctrine provides that when litigation is pending or foreseeable, parties (or potential parties) are under a duty to preserve evidence that may be relevant to the adjudication of the action. See Fed. R. Civ. P. 37. When a party destroys relevant evidence with intent or through gross negligence, it may be subject to sanctions, including the application of adverse evidentiary inferences for a jury to apply at trial. Indeed, given the significant impact a loss of discoverable evidence can have on a plaintiff’s ability to successfully adjudicate his or her case, plaintiffs should always be mindful of important evidence that may exist—for example, videotapes—and be prepared to make arguments in the event such evidence is lost. However, as a recent decision from a Georgia federal district court reveals, establishing spoliation can be a difficult undertaking.

The incident at the heart of this case occurred at a golf course in the Appalachian region of Northern Georgia on October 11, 2014. On that day, the plaintiffs were driving in a golf cart between the second and third holes of the course when the golf cart slid and flipped. The plaintiffs sustained injuries as a result of the accident, and they alleged these were caused by the poor condition and maintenance of the path, about which they claimed they were not warned. The plaintiffs brought suit against the company that owns and manages the golf course, alleging negligence and loss of consortium. After the accident, both the golf cart and the signage that indicated drivers should avoid the area where the crash occurred had been removed or destroyed. Accordingly, the plaintiff made a motion seeking spoliation sanctions.

May 11, 2016

Georgia Federal Court Sanctions Defendants for Failing to Preserve Driver’s Records in Tractor-Trailer Accident Case

by Christopher Simon

It goes without saying that success in a lawsuit often depends on the evidence. Although a plaintiff is not always certain that he or she will have access to the best possible evidence, one does expect that the opposing party will not, through either neglect or willful obstruction, allow material evidence to be lost. Even though the effects of lost evidence are not easy to cure, court do have means of penalizing parties that fail to comply with their obligations to preserve evidence. For instance, in a recent decision, O’Berry v. Turner, a federal judge imposed sanctions on several defendants in a tractor-trailer accident case for failing to produce material related to the driver and tractor-trailer involved in the accident.

Turner started with a June 2013 traffic accident in Homerville, Georgia. While proceeding west along Dame Avenue in Homerville, a vehicle being operated by one of the plaintiffs in this action was struck by a tractor-trailer, which the driver of the car alleged swerved into his lane without warning. The collision caused the car to veer off the road and into a light post. As a result of the accident, the driver and another occupant in the vehicle sustained various injuries. The truck was being operated by an employee acting on behalf of ADM Trucking, Inc. and Archer Daniels Midland Company. Following the accident, the driver and the other occupant brought suit against the driver of the tractor-trailer, ADM, and Archer Daniels. In August 2013, counsel for the plaintiffs sent a spoliation letter to ADM, requesting that the defendants make an effort to preserve various evidence related to the driver and the trailer involved in the accident. Counsel for the defendants responded to this request and stated that the defendants would take all measures necessary to assure the preservation of pertinent evidence. Eventually, the plaintiffs made a discovery request to the defendant, requesting, inter alia, the truck driver’s driver log and all electronically stored information related to the tractor-trailer involved in the accident. The defendants failed to comply with the request, and the plaintiffs moved for sanctions against ADM and Archer Daniels.