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No Notice of Potential Litigation, No Possible Spoliation

November 02, 2013 BY Def Admin

           Spoliation “is the destruction or the significant and meaningful alteration of evidence,” so that the evidence is no longer available to a party in pending or future litigation.  An individual or entity that causes either the intentional or unintentional spoliation of evidence is known as a spoliator.  The reality is that the effects of spoliation can often be very harsh.  However, the rules against spoliation do not require that individuals or businesses retain documents or correspondence in the regular course of business merely because someday, someone may file a lawsuit against them.  Rather, the rules against spoliation apply only to the destruction or alteration of evidence when litigation is anticipated by the spoliator.  It follows, then, that spoliation of evidence is only possible if a party is put on notice of potential litigation. 

            Specifically, “[s]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”  In Kitchens v. Brusman, 303 Ga. App. 703 (2010), the Court held that: “Georgia law allows a finding of spoliation if the loss of evidence occurs at a time when there is ‘contemplated or pending litigation.’  We have held that [the mere] contemplation of potential liability is not notice of potential litigation […] the simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.”

            It, therefore, requires something more than the simple knowledge that someone, at some point, may decide to file suit to trigger the rules against spoliation and the imposition of sanctions for the failure to preserve evidence.  Georgia courts have recognized that to hold otherwise would be tantamount to requiring that every piece of paper – regardless of how insignificant – be retained indefinitely.  After an injury, clients should preserve everything reasonably suspected to be related to the incident.  The burden to preserve is heightened, once a party receives notice that the injured individual is represented by counsel.  Even then, though, the opposing party must still prove both prongs of the two-part threshold inquiry before they are entitled to the presumption that the evidence would have been harmful to the spoliator. 

            When a party brings an allegation of spoliation of evidence, the initial threshold determination itself consists of a two-part test: (1) is the evidence at issue “necessary” to the litigation; and (2) was there “contemplated or pending litigation” at the time of alleged spoliation.  If both prongs are not met, then there is no “spoliation” and by definition no sanctions can be applied.  

            Upon a finding that spoliation did occur, the court must determine whether spoliation sanctions are warranted.  In making this determination, Georgia courts consider several factors including: (1) whether the non-spoliating party was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical important of the evidence; (4) whether the spoliator acted in good or bad faith; and (5) the potential for abuse if expert testimony regarding the evidence is not excluded.  Then, if the court has determined (1) that there has been spoliation, and (2) that sanctions are warranted, the court can decide what sanction to impose. 

            Georgia courts have recently shown a willingness to deny plaintiffs’ spoliation motions.  For example, inPowers v. Southern Family Mkts. Of Eastman LLC d/b/a Piggly Wiggly, 320 Ga. App. 478 (2013), Plaintiff fell while exiting the store and later filed a motion for spoliation after the store taped over the incident in the ordinary course of business.  In Powers, the Georgia Court of Appeals affirmed the trial court’s denial of a plaintiff’s pre-trial motion for sanctions based on alleged spoliation of the video evidence from the day of the incident, because the defendant had no notice that plaintiff was contemplating litigation when it recorded over the video in question.  The Court of Appeals affirmed the trial court’s refusal to impose sanctions for spoliation, relying on the store manager’s timely response and follow-through, and his understandable reliance on Plaintiff’s initial indication that she was uninjured.  Approximately nine months after the incident, Powers filed suit.  Upon learning no video of the incident existed, Powers filed a motion for sanctions for spoliation of evidence.  After oral argument, the trial court denied Powers’ spoliation motion.  The trial court also granted Southern’s motionin limine prohibiting both parties from making any argument or eliciting any testimony concerning the alleged spoliation of video evidence.

            The Court of Appeals upheld the trial court’s ruling on Powers’ motion for spoliation sanctions, stating that, “notice of potential liability is not the same as notice of potential litigation.  To meet the standard for proving spoliation, the injured party must show that the alleged tortfeasor was put on notice that the party was contemplating litigation.”  The Court also reinforced previous decisions, holding that “the mere contemplation of potential liability and the completion of an accident report after an investigation do not demonstrate contemplated or pending litigation” sufficient to automatically trigger the rules of spoliation.  The Court rejected Powers’ argument that the manager’s actions following the incident, including completing an incident report and taking pictures, demonstrated that Southern was anticipating litigation.  Since the record showed that no spoliation had occurred and that Southern did not intentionally destroy any video footage of the incident, the Court found that all testimony regarding the video evidence was properly excluded.

            In sum, to successfully prevail on a charge of spoliation, a party must show that the spoliator was on notice of potential litigation, not merely on notice of potential liability, at the time the alleged destruction or alteration of evidence occurred.  In addition, this evidence must be necessary, as interpreted by the appellate courts, to the contemplated or pending litigation.  Absent a showing of both prongs, there can be no spoliation.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)