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Posted by Susan J. Levy

Recently, I have seen a steady flow of preservation letters, demanding our clients preserve everything from the damaged vehicle itself to any scrap of paper ever mentioning anyone or anything even tangentially involved in the alleged tort. While I recognize that prospective plaintiffs have a right to inspect evidence before it is altered or repaired, plaintiffs’ counsel have, in my opinion, gone too far. The rules against spoliation do not require that individuals or businesses retain documents or correspondence in the regular course of business just because someday, someone may file a lawsuit against them. Rather, the rules against spoliation apply only to the destruction or altering of evidence when litigation regarding an event is anticipated.

Specifically, “[s]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” AMLI Residential Properties, Inc., v. Georgia Power Co., 293 Ga. App. 358, 361 (quoting Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767, 768 (2002)) (emphasis added). In Kitchens v. Brusman, 2010 Ga. App. LEXIS 354 (2010), the Court held that: “Georgia law allows a finding of spoliation if the loss of the evidence occurs at a time when there is ‘contemplated or pending litigation.’ [citations omitted] We have held that [the mere] contemplation of potential liability is not notice of potential litigation. . . . the simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. Kitchens at *11-*12 (citing Silman v. Associates Bellemeade, 294 Ga. App. 764, 767 (2008)).

The rules against spoliation and the imposition of sanctions for the failure to preserve evidence must, therefore, be triggered by something more than the simple knowledge that someone may decide to file suit. Georgia courts have recognized that in the litigious society we live in, to hold otherwise would be tantamount to requiring that every piece of paper – regardless of how insignificant- be retained forever. While I encourage my clients to maintain good records and to be careful about their retention policies (regarding both paper and electronic information), I also want my clients to understand that the ability to impose sanctions for spoliation are, at least in some ways, limited. Where the courts will draw the line has yet to be determined. To be safe, I tell my clients that after an injury, preserve everything they reasonably suspect may be related. Certainly, once we have notice that the party is represented by counsel, the burden to preserve is heightened. Even then, however, the opposing party must prove (1) the destruction or failure to preserve evidence, (2) that the evidence is necessary, (3) to contemplated or pending litigation, before they are entitled to the presumption that the evidence would have been harmful to the spoliator. Baxley v. Hakiel Industries, Inc., et al., 282 Ga. 312, 313 (2007).

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