Spoliation. A lawyer’s four letter word. Spoliation occurs when evidence that is necessary to contemplated or pending litigation is either destroyed or otherwise of not preserved. Piedmont Newnan Hospital, Inc. v. Barbour, 333 Ga App. 620, 629-30, 774 S.E.2d 822 (2015). And it is then presumed that the lost evidence would be harmful to the “losing” party.
For a long time, this standard was acknowledged to be that a party was under an obligation to preserve evidence once they were on notice that there would be or was active litigation. This was frequently believed to require actual notice, i.e., a written demand letter or physical receipt of a Complaint.
But 2015 introduced a few cases that significantly changed this presumption and standard. Specifically, in Phillips v. Harmon, the Supreme Court of Georgia expressly rejected the previous line of cases that required actual notice. Instead, the Supreme Court of Georgia recognized that such notice could be constructive based on the relevant facts or circumstances:
Notice that the plaintiff is contemplating litigation may also be derived from, i.e., litigation may be reasonably foreseeable to the defendant based on, other circumstances, such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances. . . . Again, the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of that evidence, and thus while actual notice of litigation from the plaintiffs would clearly make such litigation foreseeable, other circumstances may show that the defendant/alleged tortfeasor actually or reasonably should have anticipated litigation, even without notice of a claim being provided by the injured party/plaintiff.
297 Ga. at 398 (emphasis added). The Court of Appeals reiterated this understanding in Loehle v. Georgia Dept. of Public Safety, where it reversed and remanded trial court’s denial of a spoliation motion because it required “actual or express” notice of litigation, “an erroneous legal theory.” 334 Ga. App. 836, 842-43, 780 S.E.2d 469 (2015).
A plaintiff and defendant will likely have different perspectives on the case, but the trigger to preserve evidence is similar. And the duty to preserve evidence must be viewed from the perspective of the party with control of the evidence.
For the plaintiff, i.e., the injured party, the duty to preserve relevant evidence arises when they contemplate litigation, inasmuch as actual or potential litigation is obviously foreseeable to them at that time.
For a defendant, the opposing party, the duty to preserve relevant evidence arises when they know or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation which the case is often referred to in terms of notice to the defendant.
Often times the particular facts of the case can be highly dispositive. This is because trial courts have wide discretion when considering spoliation and Georgia appellate courts will not disturb their ruling absent an abuse of discretion. This is a very high standard to overcome.
For instance, a trial court may consider not only the facts arising to or relating to the injury but also what the defendant did afterwards. This can include what the defendant did or did not do in response to the injury, including the initiation and the extent of any internal investigations, the reasons for any notification of counsel and insurers, or any other indication by the defendant that it was acting in anticipation of litigation.
A party facing a spoliation motion risks a wide range of sanctions, ranging from the exclusion of limited evidence to either an outright dismissal of claims or their answer. In Piedmont Newnan Hospital, Inc., a hospital failed to preserve certain radiological digital images. These images could have influenced a jury’s consideration of whether the procedure had been properly performed during the first of a two stage process. Rather than dismissing or entering the drastic sanction of dismissal, the trial court excluded the hospital from arguing that the first stage was properly performed.
Given how Georgia courts view spoliation of evidence – and the potentially significant sanctions available – attorneys would be well-advised to ensure that their clients understand their current pre-litigation obligations and duties. Additionally, attorneys should be mindful of various best practices the moment a client notifies them of either a specific instance or various facts that might lead to litigation.
You have been warned.