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.

Client Reviews
"My family hired Ken after our parents were killed in a trucking accident in GA in 2013. We worked with Ken for 19 months before our case settled. During this time I thought Ken was outstanding. He was accessible to us at all times and maintained consistent communication. He was patient with us and took time to explain the finer points of law. While we avoided going to trial, he prepared diligently and I felt like he was leaving nothing to chance. I am relieved that our case is complete and I will miss working with Ken. He was very thoughtful and caring while helping us to stay relaxed. I would highly recommend him to anyone who requires these types of services." David U., Client, Vermont
"When tragedy struck our family in the form of the wrongful death of our son and caused me physical injuries and changed our lives forever, we dragged our feet about hiring a lawyer. I didn't want to face having to go through the stress. Big mistake. The first thing you do is hire local counsel. I found Mr. Shigley by surfing the web, and we got a listening ear. He was realistic, professional and worked very hard in our behalf. Not only that, he showed a genuine concern for our family, and ran interference for us on a number of issues relative to our case. If I had it to do over again, I would have hired him sooner." Carolyn R., Newnan, GA
"After my parents were killed in a tractor truck accident on December 2013, he fought hard against the insurance companies to help my brother, sister, and I. He was honest and always available to answer any questions I had. Ken went out of his way to meet with my brother and I while on vacation in New England. He was awesome in explaining everything to us in detail and looked out for us with every step of the lawsuit. I would highly recommend him." Joan M., Client, Massachusetts
"I first met Ken when I watched him try a very difficult case involving catastrophic injuries. He was an incredibly effective advocate and was able to obtain justice for his client. I have since come to know him as one of the state's leading trial lawyers, particularly in trucking cases, which involves complex regulatory and legal issues not involved in other types of cases. I do not hesitate to recommend Ken for any kind of personal injury case." John H., Attorney, Atlanta
"Ken Shigley is an excellent trial lawyer in the area of commercial trucking. He knows the specialized rules for handling truck wreck cases for the victims and their families when tractor-trailers leave a devastating loss, catastrophic injuries and deaths. He is an advocate who understands the impact on his clients and is highly effective in bringing them justice." Myles E., Attorney, Atlanta