Spoliation of evidence is the destruction of, or failure to preserve, evidence that is relevant to litigation that is either pending or reasonably foreseeable. In Georgia truck accident litigation, spoliation issues arise frequently because commercial vehicles generate large amounts of time-sensitive data and physical evidence. This article explains how Georgia law treats the duty to preserve evidence and the role that notice plays in that analysis.
The duty to preserve evidence
Under Georgia law, a party has a duty to preserve relevant evidence when litigation is pending or reasonably foreseeable to that party. The leading decision on this question is Phillips v. Harmon, 297 Ga. 386 (2015), in which the Georgia Supreme Court addressed what triggers the duty to preserve. The Court explained that the duty arises not only when a party receives notice of a claim but also whenever that party itself actually or reasonably should anticipate litigation.
This means a motor carrier’s duty to preserve can be triggered in two distinct ways. The first is actual notice from the injured person or a representative. The second is the carrier’s own anticipation of litigation, which can arise from the circumstances of the collision even before any notice is sent. Phillips v. Harmon makes clear that a defendant cannot avoid the duty simply because no formal demand has been received.
Notice from the injured party
Although Georgia law does not require a particular form of notice to create the duty, a written communication directed to the motor carrier or its insurer is the most direct way to establish that the carrier was on actual notice. Such a communication, sometimes called a preservation letter or evidence preservation request, ordinarily identifies the collision, requests that specific categories of evidence be retained, and states that litigation is contemplated.
The categories of evidence relevant in trucking cases are often broad. They can include the electronic control module or event data recorder data, hours-of-service records and electronic logging device data, driver qualification files, vehicle inspection and maintenance records, dispatch and communication records, the vehicle and its components themselves, and any onboard or facility video. When a preservation request specifically identifies these items, it strengthens the showing that the carrier knew the items were relevant and within its control.
Constructive notice and anticipation of litigation
Even without a preservation letter, Georgia courts examine whether a defendant should reasonably have anticipated litigation. Phillips v. Harmon and later decisions identify circumstances relevant to that inquiry. These include the type and extent of the injury, the extent to which fault is clear, the potential financial exposure if liability is found, the relationship and course of conduct between the parties, and the frequency with which litigation arises in similar circumstances.
Courts also consider the defendant’s own conduct after the event. The initiation and scope of an internal investigation, the reasons for notifying counsel or insurers, and any expression by the defendant that it was acting in anticipation of litigation can all show that the defendant in fact anticipated a claim. A motor carrier that dispatches an accident response team, retains counsel, or opens an insurance claim may be found to have anticipated litigation, which triggers the preservation duty regardless of whether the injured person sent any notice.
What happens when evidence is not preserved
When relevant evidence is lost or destroyed after the duty to preserve has arisen, a Georgia court has discretion to impose sanctions. The recognized remedies include dismissal of the case, exclusion of testimony or evidence connected to the missing material, and a jury instruction on spoliation that allows or directs the fact finder to presume the missing evidence would have been unfavorable to the party that failed to preserve it.
In deciding whether and how to sanction spoliation, Georgia courts weigh several considerations. These include whether the party seeking sanctions was prejudiced by the loss, whether that prejudice can 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 a sanction is not imposed. A separate statute, O.C.G.A. Section 24-14-22, provides that when a party has evidence within its power to produce and does not, a presumption arises that the evidence would be against that party.
How a spoliation claim is preserved
In Georgia, spoliation is generally not an independent cause of action against the party that lost the evidence; instead it is addressed as an evidentiary and remedial matter within the existing lawsuit, typically raised by motion. To support a request for spoliation sanctions, the party raising the issue ordinarily must show that the evidence existed, that the opposing party had a duty to preserve it, that the duty had been triggered at the time of the loss, and that the evidence was lost or destroyed.
Notice plays a central role in this showing. A documented preservation request establishes the date the carrier had actual notice and identifies the specific items at issue, which assists in proving that the duty had attached before the evidence was lost. Where no such request exists, the analysis turns to constructive notice and the carrier’s anticipation of litigation under the Phillips v. Harmon factors.
Timing considerations
Trucking evidence can be subject to routine destruction under a carrier’s ordinary record retention practices and under federal retention periods that apply to categories such as logs and inspection records. Because some data may be overwritten or discarded on short cycles, the timing of notice matters. Once the duty to preserve has been triggered, a carrier’s continued reliance on routine destruction practices does not excuse the loss of relevant evidence.
Conclusion
Georgia law does not require a single prescribed form of notice to create the duty to preserve evidence. The duty arises when litigation is pending or reasonably foreseeable, which can result from actual notice by the injured party or from the carrier’s own anticipation of litigation under Phillips v. Harmon. A specific written preservation request strengthens the record by fixing the date of actual notice and identifying the evidence at issue, while the constructive-notice factors govern when no such request exists. Loss of evidence after the duty attaches can result in sanctions ranging from an adverse jury instruction to dismissal.
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.