What is Spoilation of Evidence and What Does it Have to do With Personal Injury Cases?

Personal Injury

If you have ever heard the term, “spoilation of evidence,” you may be wondering what it is and what it has to do with personal injury cases.

Well, in today’s post, we are going to touch on that very subject.

Litigation, Evidence, and Proof

Proving one’s case in any civil dispute requires producing evidence. While we often hear the terms “proof” and “evidence” used interchangeably, they are actually separate concepts.

“Evidence” is the physical objects, data, or information that helps the trier of fact determine the existence of a fact.

“Proof,” on the other hand, is the conclusion drawn from the evidence that a fact is or is not true.

In the context of a personal injury case, for example, a car crash, the injured party must prove that the at-fault party was negligent in some manner and that it was this negligence that caused the accident.

For example, proving that an at-fault driver was texting right before a car crash requires providing evidence to support that theory of the defendant’s negligence. Such evidence can be physical objects such as the cell phone itself and the telephone records.

But what happens if the defendant hides, alters, or even destroys the evidence?

Does that mean the plaintiff will never be able to prove the defendant’s liability?


When a party who is in control of evidence that is necessary to a pending or contemplated litigation destroys that evidence, the legal doctrine of “spoilation of evidence” comes into play.

Spoilation of Evidence

“Spoilation of evidence” is a well-established legal doctrine grounded in the common law. The foundational element of the doctrine is that one has a duty to preserve evidence that is relevant to a pending or potential litigation.

The destruction—whether inadvertent or intentional—of evidence that one has a duty to preserve and that is relevant to a pending or potential litigation, is considered “spoilation of evidence.”

To prevent defendants from attempting to evade responsibility or from making it harder for a plaintiff to prove their liability simply by destroying the relevant evidence, the doctrine provides that if someone destroys evidence he/she has a duty to preserve, (e.g., the cell phone in our example) he does so at his/her own peril.

What peril is that?

Depending on your state’s laws, the consequences can include:

  • A motion for sanctions
  • A rebuttable presumption that the lost/destroyed information/evidence was unfavorable to the defendant
  • Dismissal of defendant’s action

In making a determination of whether or not “spoilation” has occurred, and if so, whether it was done deliberately, inadvertently or negligently, the trial courts consider a number of factors. Among them are whether the non-spoiling party was prejudiced by the destruction of the evidence.

Spoilation of evidence motions have become more prevalent in personal injury cases. They are being used more frequently against plaintiffs who accept an insurance carrier’s offer to pay for a totaled car. This failure to keep the car —even though it was totaled and even though there are no allegations that faulty mechanics caused the crash—is being used in some cases to create an unfair advantage for a negligent defendant.

Competing legal requirements—such as a plaintiff’s duty to preserve evidence relevant to the litigation, and the fact unless mechanical failure is alleged, a plaintiff typically need not preserve the car unless requested to —makes personal injury, and car accidents in particular, an area of law where it is important to always have experienced personal injury counsel on your side.

Personal Injury Attorneys in Cumming, Georgia.

The personal injury attorneys at the Law Offices of Mark Weinstein, P.C., are here to help you. We serve clients in Atlanta, and in several counties throughout Georgia, including: Clayton County, Cobb County, Dekalb County, Douglas County, Fulton County, and Paulding County, among others. To find out how we can help you, call us at: 770-888-7707. Or contact us here.



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