Destroying evidence you should have kept can be held against you.
What Spoliation Is
In Phillips v. Harmon, 297 Ga. 386 (2015), the Georgia Supreme Court explained that “spoliation” refers to “the destruction or failure to preserve evidence” that is relevant to “contemplated or pending litigation.”
The Duty Starts Before the Case Is Filed
Phillips held that “the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.”
So the clock does not start when you are served. It starts when a divorce becomes reasonably foreseeable to you. From that point, clearing out account statements, receipts, or correspondence is not housekeeping.
What It Can Cost You
Phillips quoted OCGA 24-14-22: “If a party has evidence in such party’s power and within such party’s reach by which he or she may repel a claim or charge against him or her but omits to produce it … a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.”
Georgia courts do not apply that presumption automatically. Phillips said an adverse inference instruction is to be given “only in exceptional cases,” that “the greatest caution must be exercised in its application,” and that a judge deciding whether to give one should weigh “whether the party who destroyed the evidence acted in good or bad faith.” A trial court has wide discretion in adjudicating spoliation issues.
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This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!