Spoliation: The Dangerous Decision to Destroy Evidence

Spoliation is the destruction or significant alteration of evidence or the failure to preserve property (or evidence) for another’s use as evidence in pending or reasonably foreseeable litigation. The moving party bears the burden of proving spoliation and must show:

  • The missing evidence existed at one time;
  • The spoliating party had a duty to preserve the evidence; and
  • The evidence was crucial—not just relevant—to the moving party’s ability to prove her case.

In many of the personal injury cases where we get hired early on, we send out spoliation letters to the defendants telling them to preserve the evidence.


This case arose from an auto accident that happened in November 2020. A semi driver for a supplier of metal products (“the company”) followed behind a large tractor while traveling along highway GA-44. The company’s driver then tried to pass the tractor, crossed the double-yellow lines, and entered the northbound lanes. As he crossed into the other lane, a second vehicle that was driving in the direction of the company’s truck—moved to the edge of his lane to avoid a collision. Following behind the second vehicle, the plaintiff slowed down as well. However, her change in position caused her to collide with second vehicle. As a result of the collision, the plaintiff and her husband, a passenger in the car—crossed the southbound lane, left the roadway, and collided with trees along the embankment.

The company’s driver didn’t stop his vehicle. Instead, he kept driving into Jones County where he was later stopped by an officer in Gray, Georgia—nearly 14 miles from the scene of the accident. Officers cited The company’s driver for passing in a no-passing zone in violation of O.C.G.A. § 40-6-46.

On October 10, 2022, the plaintiffs filed their motion, seeking sanctions for spoliation of evidence against the driver and the company (the defendants). In their motion, the plaintiffs argued that the defendants failed to preserve:

  • The driver’s electronic logging device (“ELD”) and other federally-mandated logs;
  • “Subject trip documents,” which the plaintiffs contend these documents include: a shipping manifest, documents outlining a driver’s responsibilities, a driver’s checklist, a “DIFOT Log” to record inventory/delivery completion, an expense report sheet, a mileage slip, and proofs of delivery executed by customers; and
  • Drug and alcohol test results from the day after the accident.

Judge Cites “Troubling” Discovery Patterns

United States District Judge Tilman E. Self, III wrote that prior to reviewing the elements of spoliation, the Court must go through the defendants’ “troubling” discovery patterns. First, the defendants received requests for production and interrogatories on June 23, 2022, with a response deadline of 30 days following the date of service. In their August 2, 2022, responses, many of the requested documents at issue weren’t produced. In fact, they didn’t produce even one of the documents in dispute in the motion, even though the company’s representative testified that he pulled together several of the documents and turned them over to “upper management.”

The plaintiffs’ counsel then noticed a deposition for the company’s driver. The day before that deposition, the driver supplemented his interrogatory responses and included—for the first time—that he took a drug test the day following the accident.

Additionally, the company’s amended responses to the plaintiffs’ requests for production claimed that no records of duty status or daily logs existed for their driver around the time of the accident. However, Judge Self said that wasn’t true. One simple search of the log portal produced a record of duty status for the driver on the day of the accident. Granted, these reports show that he was off duty on the day of the accident ; however, saying (under oath) that no records exist and then later producing the very records (albeit with patently untrue information) can’t be readily squared, the judge reasoned. In fact, the records showed that the company’s transportation manager in Birmingham printed the report on “12/8/2022″—months after the plaintiffs initially asked for the documents. The defendants claimed that the equipment in the driver’s truck must have malfunctioned, and that was the reason for the incorrect data showing that he didn’t work at all when the accident happened. The defendants pointed to no other employees who suffered a similar malfunction during the relevant time frame, the judge wrote.

Judge Self said that “in that same troublesome vein, the defendants chose to wait and produce some documents only while the plaintiffs were literally in the middle of a witness deposition.” The defendants produced the results from a prior drug test—unrelated to the accident in question—during the company president’s personal capacity deposition. But after discovery closed, they produced—for the first time—a copy of the drug/alcohol test results from November 12, 2020—the only post-accident drug test the defendants contend their driver took.

During the company’s Rule 30(b)(6) deposition—for which it designated its president–the evasion and misleading continued. The executive was clearly unprepared for numerous topics that the plaintiffs properly noticed. Indeed, he insisted that other people within the company would be better suited to answer questions regarding certain topics. But the company didn’t designate those individuals, it designated the president. He didn’t even discuss those issues with the individuals at the company who would know the relevant information in preparing for his) deposition, leaving the distinct impression that he intentionally remained ignorant on those topics.

The judge said that the “proverbial cherry on top” came on December 9, 2022—four days before the hearing on the motion—when the defendants produced, for the first time, logs showing their driver’s status as “off duty” on the day of the accident. Again, records clearly dispute the defendants’ prior position that no records existed. And those records were clearly incorrect, the judge said.

The Missing Evidence Existed at One Time

The defendants gave no logical or practical reason why the records weren’t disclosed earlier. the company’s transportation manager walked the Court through his process of finding the records—a simple search of the logging portal magically produced what couldn’t be found before. These records came 169 days after the plaintiffs first requested the documents; 80 days after the defendants supplemented their own responses and disclosures; and 23 days after the close of discovery. the defendants simply have no excuse.

The company’s driver testified that he turned in his paperwork, including federally-mandated logs, to the company upon his return to Birmingham, Alabama, the day following the accident. Indeed, the company’s transportation manager testified that he pulled the logs from the ELD portal, gathered the relevant trip documents, and turned them over to members of “upper” management. However, when the company “tried” to find the documents later, the documents had mysteriously disappeared.

The defendants’ main argument was that the documents did exist—but the contents were inconclusive. Pointing to the documents they turned over on December 9, 2022—a mere four days before the hearing on the motion—they argued that their driver’s GPS and ELD machines must have malfunctioned. The logs they produced show that the driver was “off-duty” the entire day on November 4, 2020. However, he clearly worked that day. He received a citation in the company truck in Gray, Georgia. Nonetheless, the defendants embarrassingly contended that these inconclusive results show that they didn’t spoliate the logs or trip documents.

Judge Self said those arguments failed for a few reasons. First, it seemed quite convenient that the driver’s (and apparently only his) GPS and ELD malfunctioned on the day of the accident. Other drivers’ ELD and GPS machines worked perfectly that day. Even the driver’s truck GPS was able to follow his path from Birmingham to Georgia. So, it was clear the driver worked that day.

The company’s transportation manager  also testified that it is company policy for drivers involved in accidents to take a post-accident drug test immediately. The company’s driver testified he did take that test “the next day,” following the accident. He testified that his screening occurred at “American Family Care.” [Id.]. The company’s driver told the same story in his Response to the plaintiffs’ First Interrogatories, where he again confirmed that he took a drug/alcohol test the next day at “Americus Family Care.”

On November 22, 2022—four days after the close of discovery—the defendants disclosed, for the first time, a drug/alcohol test that the driver took on November 12, 2020—eight days after the accident. The defendants claimed that was the sole drug/alcohol test that he took. He just couldn’t remember when he took it. However, the significant inconsistencies between the driver’s sworn testimony, the company’s transportation manager ‘s testimony, and the actual test results gave the judge “considerable concern.” The fact that the defendants waited to disclose the results after the close of discovery was enough to raise suspicions. As such the Court easily concluded that the evidence did exist at some point.

The Duty to Preserve

The defendants owed the plaintiff an obligation to preserve such evidence for three reasons. First, the evidence shows that they were aware of the accident, therefore litigation was “reasonably foreseeable.” The evidence showed that the company’s transportation manager  knew about the accident—and injuries arising from it—the day following the accident. The defense counsel’s privilege log and other communications also showed that within days following the wreck, they discussed the accident with the defendants and others involved. Therefore, they knew that litigation was reasonably foreseeable. Not only that, the judge said they knew litigation was imminent, as they started to prepare for it themselves. Even more, the defendants reported the accident to their insurance carrier, who then began an investigation.

Second, both the plaintiffs and the driver of second vehicle sent the defendants spoliation letters reaffirming their duty to preserve evidence related to the accident. The letters were sent on November 12, 2020, and November 25, 2020, respectively. A spoliation letter triggers a duty to preserve by putting a party on notice of potential litigation.

Third, Federal Motor Carrier Safety regulations require the defendants to maintain these logs and records for a period of at least six months. Indeed, if the GPS did in fact malfunction, regulations required the company to record that malfunction within eight days. But they didn’t do that. Moreover, they didn’t allege a GPS malfunction until the hearing on this motion.

Even with its privilege log showing communications about the accident within a week of the accident, the defendants stubbornly argued that they only learned of the accident when the plaintiffs filed their complaint. But that was untrue. As a result, Judge Self found that the defendants had a duty to preserve the evidence in question and that spoliation occurred.

What is the Appropriate Sanction for the Company?

If a court concludes spoliation occurred, it must then determine the appropriate sanction. To do that, courts consider the following factors:

  • whether the [moving party] was prejudiced as a result of the destruction of evidence;
  • whether the prejudice could be cured;
  • practical importance of the evidence;
  • whether the [spoiling party] acted in good or bad faith; and
  • the potential for abuse if expert testimony about the evidence was not excluded.

In the end, spoliation sanctions are intended to “prevent unfair prejudice to litigants and to insure the integrity of the discovery process.”

Each factor weighed in favor of sanctions. First, the judge found that the plaintiffs were clearly prejudiced. Notwithstanding the missing evidence, the defendants continuously caused evidence to slowly trickle in—even in the days leading to the hearing on this motion. That alone was enough to prejudice the plaintiffs, the judge held. The plaintiffs’ counsel also received numerous documents on the eve of depositions, which prevented him from effectively and fully preparing for the depositions. The plaintiffs’ attorney didn’t have the opportunity to depose anyone based on the documents received before the hearing on this motion. Further, the plaintiffs’ claims relied heavily on the information that the defendants failed to provide.

Judge Self opine that most of the prejudice couldn’t be adequately cured. The Court could allow for additional depositions, but that wouldn’t make the missing documents reappear. Plus, the evidence was of practical importance and was crucial and practically important.

As far as bad faith, the judge explained that bad faith doesn’t require a display of ill-will or malice. Instead, “purposely allowing evidence to be removed from one’s possession alone can constitute bad-faith spoliation.” Awareness of the need for the evidence, the duty to preserve it, and then allowing that evidence to disappear is enough to sustain sanctions. A pattern of disregard for the discovery process and timely disclosure of evidence is also indicative of bad faith, the judge wrote.

As such, Judge Self found that the defendants acted in bad faith throughout the discovery process. The pattern of delay and obfuscation left him with a clear conviction that the defendants deliberately tried to evade discovery. The judge found that sanctions were appropriate. In determining the appropriate sanction, a court may:

  • dismiss the action or enter default against a defendant;
  • exclude the relevant testimony; or
  • give a jury instruction on spoliation of evidence which raises a presumption against the spoliator.

In this case, the facts didn’t rise to the level necessary to strike the defendants’ answers, Judge Self held. Instead, based on these facts, an adverse jury instruction was appropriate. As a result, the Court granted the plaintiffs’ Motion for Sanctions. Fielder v. Superior Mason Prods., LLC, 2022 U.S. Dist. LEXIS 228989 (M.D. Ga. December 20, 2022).

Questions About Evidence After a Truck Accident?

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