What is spoliation of evidence and when does the duty to preserve arise in Georgia?

· 3 min read

Spoliation is the destruction, loss, or material alteration of evidence that a party knew or should have known was relevant to litigation. In Georgia, a duty to preserve such evidence arises once a lawsuit is pending or reasonably foreseeable, and breaching that duty can expose the responsible party to sanctions.

Defining spoliation

Spoliation concerns evidence that mattered to a claim or defense and is no longer available, or no longer in its original state, because of how a party handled it. The evidence might be physical, such as a damaged vehicle or product, or electronic, such as video footage, phone data, or maintenance records. What turns ordinary loss into spoliation is that the party should have recognized the material’s relevance to actual or anticipated litigation and failed to keep it.

The concept applies to both sides. A defendant that scraps a vehicle or overwrites a recording can commit spoliation, and so can an injured person who discards a defective part, repairs a car before inspection, or deletes relevant data. Georgia does not reserve the doctrine for one party.

When the duty to preserve begins

The preservation duty does not wait for a complaint to be filed. It generally attaches when litigation is either pending or reasonably foreseeable. The key question is whether the party reasonably should have anticipated that the evidence would be relevant to a dispute. Factors courts look at include:

  • Notice of a claim, such as a demand letter, a preservation request, or a report of injury.
  • The seriousness of an incident, since a significant injury can make litigation foreseeable on its own.
  • A party’s own conduct suggesting it expected a claim, like opening an investigation or notifying an insurer.

Because of this standard, the obligation to preserve can begin soon after a serious accident, well before any suit is filed. A party that destroys relevant material after the point at which litigation became foreseeable risks a spoliation finding even if no case had yet been filed.

Determining whether the duty had arisen, and whether it was breached, is generally a matter for the trial court, which weighs the circumstances surrounding the loss of the evidence.

The bottom line

Spoliation in Georgia is the failure to preserve evidence a party knew or should have known was relevant to litigation, and the duty to preserve arises when a suit is pending or reasonably foreseeable, which can be soon after a serious incident. Because the duty binds both sides and can attach before any complaint is filed, recognizing it early is what keeps key evidence intact.

This article is for general educational and informational purposes only and is not legal advice. It does not create an attorney-client relationship, and Georgia law may change. For advice about a specific situation, consult a licensed Georgia personal injury attorney.

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