by Vincent A. Toreno, Esq.

If there has been an accident at your business, whether the accident involves an employee or a customer/third party, it is a good idea to preserve any evidence related to the accident (e.g. physical evidence such as a machine, piece of furniture, or document, or electronic evidence such as computer files or email). First, the evidence will likely be important to any investigation into the accident but there may also be legal ramifications if the evidence is not preserved. Spoliation is the term for evidence that has been destroyed or altered in some significant way. In Georgia, a person or business may have a duty to preserve evidence even where a lawsuit has not been filed.

In civil cases, the judge can punish the offending party by telling the jury to presume that the evidence, which no longer exists or has been altered, would have been harmful to the spoliator’s case. This presumption, although rebuttable, can be devastating during the trial of the case. The Georgia Supreme Court recently decided the Phillips v. Harmon case stating that the duty to preserve evidence is triggered not only when litigation is filed but also when it is “reasonably foreseeable” to the party with control of the evidence, that the plaintiff is “contemplating” litigation. Factors include: the type and extent of the injury, the extent liability is clear, the potential financial exposure, the relationship and course of conduct between the parties, past litigation or threatened litigation, and the frequency with which litigation occurs in similar cases.

In worker’s compensation cases, immediately investigating the accident and preserving key evidence can be critical in determining whether the employee’s sustained injuries were in fact caused by the accident at work. Any video camera tapes which depict the area of the injury or the injury itself should be preserved. In addition, successful recovery in a potential third party subrogation suit may be determined by the proper collection and preservation of physical evidence, documents and records.

The takeaway here is that if an incident occurs that could lead to litigation, the duty to preserve evidence may be triggered simply because of the severity of the incident, the severity of the damages, or the fact that suits are often filed in similar situations – even where the potential plaintiff gives no indication of the intent to file suit. In today’s litigious society the chances of a serious accident leading to litigation are more common than ever. To preserve your rights and ensure they are protected, we recommend a policy of preserving important evidence after a serious incident and consulting counsel to ensure the relevant evidence is identified and preserved.