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What is a preservation of evidence letter and should my lawyer send one?

If you are involved in an automobile accident and the defendant or a third party (County or City) has evidence (such as a video tape) of the intersection where the accident took place, this preservation of evidence letter will require anyone who has evidence relevant to the case not to destroy this evidence. This letter could add value to the case and protect the client's interests.

One of my excellent and highly intelligent paralegals (currently attending Georgia State University Law School-Ms. Ja'Net Sirles) wrote a paper for one of her classes where the issue of spoliation appeared. Ja'Net prepared the following two statements on this subject:

  • “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bacley v. Hakiel Indus., 282 Ga. 312, 313, 647 S.E. 2nd 29 (2007). “Spoliation of evidence raises a presumption against the spoliator.” Am Casualty Co. v. Schafer, 204 Ga. Ct. App. 909, 909, 420 S.E.2nd 820 (1992).
  • …”a lawsuit does not have to be pending at the time evidence is destroyed in order for there to be a finding of spoliation of evidence.” Id. At 545. The reasonably foreseeable evidentiary value of the video not only for potential civil litigation, but also for future criminal prosecution, certainly satisfies the constructive knowledge requirement.

Wal-Mart Stores, Inc. v. Lee, 290 Ga. Ct. App. 541, 545, 659 S.E. 2nd 905 (2008)

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