The following was recently received by a colleague from an Atlanta insurance defense firm regarding a personal injury case that he was pursuing on behalf of the plaintiff:
“if any surgery is contemplated for any of the injuries he alleges we demand an IME [Independent Medical Exam]prior to the performance of such surgery. We have a right to see the alleged injuries in an unaltered state for the purpose of ascertaining their existence and causation. If you fail to properly secure and preserve this evidence and alter it prior to the requested IME, we will pursue a spoliation of evidence claim and seek all sanctions available under the applicable law.”
The law in Georgia is:
Spoliation or destruction of evidence creates the presumption that the evidence would have been harmful to the spoliator. Greer v. Andrew, 75 S.E. 1050 (Ga. 1912); Bennett v. Assoc. Food Stores,165 S.E.2d 581 (Ga. App. 1968). Proof of such conduct would raise a rebuttable presumption against your client that the evidence favored our client. American Cas. Co. &c. v. Schafer, 420 S.E.2d 820 (Ga. App. 1992). Lane v. Montgomery Elevator Co., 484 S.E.2d 249 (Ga. App. 1997). “Spoliation” is the destruction or the alteration of evidence. See Martin v. Reed, 409 S.E.2d 874. Spoliation of evidence has long been recognized in Georgia as an appropriate basis for appropriate sanctions in the decision of the underlying case. Sharpnack v. Hoffinger Indus., 499 S.E.2d 363 (Ga. App. 1998).
So clearly, the law requires that one who wants to preserve evidence to note that to the other side and to make clear that the other side should not destroy evidence that will be needed or potentially needed in the litigation. This can be done be sending a certified letter to the opposing party and stating
I am writing to demand that you take all steps necessary to preserve all evidence, including but not limited to, for example, any and all Cone Beam CT Scans/3D scans. This demand to preserve this evidence includes but is not limited to digital copies of these materials which would reside on a disc, on your computer, or on your backup drives. To the extent that you claim that these images are not longer accessible, please identify to me the computer(s) and or storage device(s) on which they reside and demand is hereby made to protect and preserve and to not destroy these computers and storage devices. In addition, I am renewing my demand for a complete and accurate copy of this material to be produced immediately to me.
However, preserving the Plaintiff’s body is absurd and shows what litigation antics some firms will go to in order to employ “scorched earth” litigation tactics.
Robert J. Fleming has been handling wrongful death cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.