What Is Spoliation of Evidence, and What Happens If Evidence Is Destroyed in a Georgia Case?

Spoliation is the destruction or failure to preserve evidence relevant to a lawsuit by a party that had a duty to keep it. In Georgia that duty begins when litigation is reasonably foreseeable to the party controlling the evidence, with or without a formal notice (Phillips v. Harmon, 2015), and the same standard applies to plaintiffs (Cooper Tire & Rubber Co. v. Koch, 2018). The remedy the Evidence Code names is a presumption, under O.C.G.A. § 24-14-22, that the missing evidence would have hurt the party that lost it.

When the duty to preserve begins

For a defendant. Phillips involved a hospital that destroyed paper fetal-monitor strips carrying nurses’ handwritten notes after a baby suffered severe neurological injuries at birth. The trial court had refused a spoliation instruction because the family had not given notice of a claim. The Supreme Court held that was the wrong legal test: “the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of that evidence”, and “actual notice of litigation from the plaintiffs would clearly make such litigation foreseeable”, but “other circumstances may show that the defendant/alleged tortfeasor actually or reasonably should have anticipated litigation”. The hospital in Phillips had triggered its own sentinel-event review and internal investigation after the birth, facts the plaintiffs offered as showing it anticipated litigation.

For a plaintiff. In Koch, the Supreme Court held that “like a defendant’s duty, a plaintiff’s duty to preserve relevant evidence in her control arises when that party actually anticipates or reasonably should anticipate litigation”. How that played out with a wrecked vehicle is explained in what happens if the defective product is lost or destroyed.

The statutory presumption

Section 24-14-22 provides that if a party “has evidence in such party’s power and within such party’s reach by which he or she may repel a claim or charge against him or her but omits to produce it”, then “a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted”. In Phillips, that was the instruction the plaintiffs requested: that the destroyed strips “would have been prejudicial” to the hospital, a presumption the hospital could rebut.

What a court weighs

A trial court has “wide discretion in adjudicating spoliation issues”, Phillips noted, but it must apply the correct legal standard. The questions in practice are:

1. Was the evidence relevant to the claim or defense?
2. Did the party control it when it was lost?
3. Was litigation reasonably foreseeable to that party at that time?
4. How much did the loss prejudice the other side, and can the gap be filled with other evidence?

The answers shape the remedy, which can range from allowing evidence and argument about the loss to a presumption instruction or more serious sanctions.

Evidence that disappears on a schedule

Some evidence can be overwritten or discarded in the ordinary course, such as surveillance video, vehicle event data, and trucking records kept only for a set period. Federal motor carrier rules, for example, require drivers’ records of duty status and supporting documents to be kept “for a period of not less than 6 months” (49 C.F.R. § 395.8(k)(1)). A written request to preserve, sent early to every party that holds evidence, is one direct way to make litigation foreseeable to them; Phillips described actual notice as making it “clearly” foreseeable.

Sources

• O.C.G.A. § 24-14-22.
• Phillips v. Harmon, 297 Ga. 386 (2015)
• Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (2018)
• 49 C.F.R. § 395.8 (Cornell Legal Information Institute)

General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.