Spoliation refers to the destruction, alteration, or failure to preserve evidence that is relevant to litigation. In Georgia, when a party believes that an opponent has spoliated evidence, the issue is raised through a motion asking the court to impose sanctions. The procedure, the legal standard, and the range of available sanctions have been shaped by Georgia statutes and by decisions of the Georgia appellate courts. This guide explains how that process generally works.
What Counts as Spoliation
Georgia courts define spoliation as the destruction or significant alteration of evidence, or the failure to preserve evidence, when litigation is pending or reasonably foreseeable. A central element is the duty to preserve. Spoliation occurs only after a party is on notice of contemplated or pending litigation. The Georgia Supreme Court addressed the trigger for the preservation duty in Phillips v. Harmon, holding that the duty can arise from actual or constructive notice that litigation is reasonably foreseeable, and that a party need not wait for a formal lawsuit or a preservation letter before the duty attaches.
Because the duty depends on notice, a key part of any spoliation dispute is determining when the responsible party knew, or reasonably should have known, that the evidence could be relevant to a future claim.
How the Issue Is Raised
A spoliation issue is presented to the court by motion. There is no single statute that creates a freestanding spoliation cause of action in Georgia. Instead, the matter is handled as a request for sanctions within the existing case. A party typically files a written motion describing the evidence at issue, explaining when the duty to preserve arose, identifying how the evidence was lost or destroyed, and setting out the prejudice caused by its loss. The motion is supported by affidavits, documents, deposition testimony, or other materials in the record.
Where the lost item was the subject of a discovery request or a court order, the discovery sanction statute, O.C.G.A. 9-11-37, may also be invoked. That statute authorizes a court to issue orders refusing to allow a disobedient party to support or oppose designated claims, prohibiting the introduction of designated matters into evidence, striking pleadings, staying proceedings, or entering default or dismissal. Whether or not the discovery statute applies, Georgia trial courts retain broad inherent authority to address spoliation on a case-by-case basis.
The Standard the Court Applies
Even when evidence has been lost, sanctions do not follow automatically. The party seeking sanctions generally must show prejudice resulting from the loss. A movant cannot obtain a remedy without showing a connection between the missing evidence and the ability to prove or defend the underlying claims.
Georgia courts weigh several factors when deciding whether to impose sanctions and which sanction is appropriate. Those factors commonly include whether the party seeking sanctions was prejudiced and whether the prejudice could be cured, the practical importance of the evidence, whether the spoliating party acted in good faith or in bad faith, and the potential for abuse if the conduct is not addressed. The good faith or bad faith of the spoliating party is the factor courts examine most closely, and the presence of bad faith strongly influences how severe a sanction the court will consider.
The Range of Available Sanctions
Georgia courts have a range of sanctions available and choose among them based on the circumstances. At the more measured end, a court may exclude certain testimony or evidence, or give the jury a rebuttable presumption that the lost evidence would have been unfavorable to the spoliating party. This adverse inference instruction is connected to O.C.G.A. 24-14-22, which addresses the presumption that arises from a party’s failure to produce evidence within its power.
More severe sanctions include shifting the burden of proof, striking a defendant’s answer, or, in extreme situations, dismissing a claim or entering a default. Georgia appellate courts have made clear that the most severe sanctions are reserved for exceptional cases where there has been bad faith and the opposing party has been prejudiced in a way that cannot be cured. Where the loss resulted from mere negligence, such as a good faith misjudgment about when the preservation duty arose, courts typically impose a lesser sanction or none at all.
The Court’s Discretion and Review
The decision on a spoliation motion rests in the sound discretion of the trial court. Because the analysis is fact-intensive, the court reviews the timeline of notice, the conduct of the parties, the significance of the evidence, and the degree of prejudice. On appeal, a trial court’s ruling on spoliation sanctions is generally reviewed for abuse of discretion, which means appellate courts give considerable deference to the trial court’s factual findings and chosen remedy.
Practical Context
Spoliation issues arise frequently in cases involving physical objects, vehicles, electronic records, and surveillance footage, because such evidence can be altered, overwritten, or discarded in the ordinary course of business. The procedure described here, raising the issue by motion, establishing the duty and its trigger, demonstrating prejudice, and asking the court to weigh the factors, is the standard path through which Georgia courts evaluate these disputes.
Summary
In Georgia, sanctions for spoliation of evidence are requested by motion within the pending case, drawing on the trial court’s broad discretion and, where applicable, on the discovery sanction statute O.C.G.A. 9-11-37. The movant generally must show that a duty to preserve had arisen, that evidence was lost or destroyed, and that prejudice resulted. Courts weigh several factors, with particular attention to good faith versus bad faith, and select a remedy ranging from an adverse inference instruction up to striking pleadings or dismissal, reserving the harshest sanctions for cases of bad faith and incurable prejudice.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.