In Georgia, spoliation refers to the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. A finding of spoliation gives rise to a rebuttable presumption that the subject evidence was harmful to the spoliator. For a party to pursue this remedy, the evidence must be “necessary” to the litigation and the spoliating party must have possessed a duty to preserve the evidence.
In a June 29 decision, Phillips v. Harmon, the Georgia Supreme Court sought to clarify the triggering of a party’s duty to preserve. Whether the duty to preserve exists is often the critical inquiry in the spoliation analysis. The implication of this duty has received extensive case law interpretation and, consequently, has experienced considerable evolution and refinement.
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