When Evidence is Lost or Destroyed

In a recent case, the Georgia Court of Appeals held that a trial court made an error when it denied a plaintiff’s motion for spoliation sanctions based on the destruction of evidence relevant to the case at hand.  “Spoliation” is another way to say that a party to litigation has destroyed or materially altered relevant evidence.  This destruction can occur at the time of the wrongful event — the negligent act — or some time thereafter.  

Some states take spoliation of evidence more seriously than Georgia by categorizing such behavior as a tort in itself — a subcategory of fraud.  However, in Georgia, there are legal consequences to the party doing the spoliating.  The remedy to the party that stood to benefit from the evidence destroyed involves sanctions against the spoliator which can range from the exclusion of evidence or in the case of willful misconduct a judgment entered against the wrongdoer.  In deciding these issues, a court will consider, among other things, how much the spoliation harmed the other party, whether the harm can be cured and whether the spoliator acted in bad faith.

In this particular case, Kroger was alleged to have destroyed evidence in a case where the bottom of a carton gave way and glass items dropped out of it injuring a shopper.  A Kroger representative took the package for safe keeping and this package was discarded by the store manager.  This is not the first case where Kroger has been alleged to have destroyed evidence.  Kroger has earned a reputation as a defendant that will destroy surveillance video evidence in slip and fall cases that is harmful to its defense and has been sanctioned by numerous courts for such conduct.

In this case, the shopper wanted to keep the package “as evidence” but a security guard stated that she would hold on to the package as evidence.  The question for spoliation is whether Kroger should have reasonable anticipated that the shopper was contemplating a lawsuit at the time of the spoliation.  A business need not be on actual notice that a lawsuit was coming.  The trial court should have considered the spoliation evidence — a customer stating that she wanted to preserve evidence and that evidence begin later destroyed — against the standard of whether Kroger could have reasonably anticipated a lawsuit.  Actual notice of a suit is not required.

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