Notice to Defendants & Insurer to Preserve Evidence

Along with a rapid initial investigation, the attorney representing the victims in a large commercial trucking accident should put the motor carrier, driver and insurer on notice to preserve evidence.

Since electronic evidence and some documents may legally begin to disappear within days or weeks, it is essential to send such a notice almost immediately. Failure to preserve evidence after being put on notice to do so may result in spoliation sanctions including admission or exclusion of evidence and an adverse inference jury instruction.

Anyone who does not believe that trucking companies purge their files of damaging documents as soon as possible if there is no formal demand to preserve evidence, is dangerously naive. We have seen cases where trucking companies and their insurers apparently preferred to risk a jury instruction about an adverse evidence than to allow a court and jury to see the truth.

Trial judges have broad discretion in ruling on spoliation issues, and the Court of Appeals is reluctant to disturb such discretion. Therefore, it is prudent to pare down a template spoliation letter to those items that are reasonably likely to exist and be relevant in the particular case, lest a trial judge find the length of the list of items designated to be overly broad and burdensome.

Georgia does not recognize an independent, third-party tort of evidence spoliation.