Posted by Susan J. Levy
In spite of the increasing number of spoliation claims crossing our desks, plaintiffs are not automatically entitled to sanctions every time a piece of evidence once in defendant’s control is no longer available. In Georgia, a party asserting that evidence has been spoliated must prove: (1) the destruction or failure to preserve evidence, and (2) that the evidence is necessary, (3) to contemplated or pending litigation, before they are entitled to the any sanctions against the spoliator. Baxley v. Hakiel Industries, Inc., et al., 282 Ga. 312, 313 (2007).