You have a nice restaurant. Great food, good atmosphere, lots of flat screen TVs for sport watching and good times are usually had by all. One fateful evening, one of
You have a nice restaurant. Great food, good atmosphere, lots of flat screen TVs for sport watching and good times are usually had by all. One fateful evening, one of your patrons, while sitting on a bar stool and enjoying some tasty bar food and a good game of football, all of a sudden plunges to the floor. You rush to his aid only to find out that the bar stool seat has broken off from the legs. Your patron was injured and you’re concerned – both for him and because of the possibility that you might get sued. You obviously have many things to consider, but one of the more immediate issues is, what to do with the stool. Should you keep it? Should you throw it away?
This is a true scenario from a case handled by this firm. There are numerous other situations where a similar determination must be made. What do you do with the tractor involved in a wreck? How about data retained on the truck’s electronic control module (ECM) or driver logs for the driver involved in that wreck? The federal regulations require only a six month retention of such records. But what must be done in these situations? What’s the right answer? Well, it depends.
If items such as the above-described stool, tractor or driver logs are destroyed but later deemed necessary evidence in a law suit, the destroying party can face some potentially severe sanctions for such “spoliation.” What is the legal meaning of that term? Spoliation is the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Kitchens v. Brusman, 303 Ga. App. 703, 704, 694 S.E.2d 669 (2010). As is the case with many “legal definitions,” there is a lot to consider with this one. For example, how have courts defined “contemplated or pending litigation?” The intent of this article, however, is to provide a basic understanding of what factors courts consider to determine whether spoliation has occurred, and, thereafter, what sanctions are assessed against a party responsible for spoliation.
AMLI Residential Properties, Inc. v. Georgia Power Co., 293 Ga. App. 358, 667 S.E.2d 150 (2008), involved a fire which destroyed an apartment building owned by AMLI Residential Properties, Inc. (“AMLI”). AMLI sued Georgia Power Company (“GPC”), claiming that GPC’s negligence in the inspection, maintenance, repair, and operation of the electrical cable and associated equipment supplying power to the building caused the fire. The trial court granted GPC’s motion in limine to exclude certain evidence due to its spoliation by AMLI, and subsequently granted GPC’s motion for summary judgment. On appeal, the Court of Appeals concluded that the trial court did not abuse its discretion in granting GPC’s motion in limine, and that the trial court correctly granted summary judgment to GPC. AMLI Residential Properties, Inc., at 358.
The facts of the case are slightly convoluted, but their analysis is pertinent to an understanding of the topic of this article. The evidence showed that the fire occurred on December 20, 2001. On January 4, 2002, AMLI’s insurer advised GPC that it suspected that GPC’s electrical equipment caused the fire and asked that GPC not remove evidence or alter the scene. The following month, GPC employees met at the scene of the fire with an electrical expert retained by AMLI. The expert watched the GPC employees “dig up the cables.” He found two ground rods associated with the two meter panel boxes near the suspected site of the fire. He removed the partial remains of what the parties referred to as “Ground Rod 1” and took it to storage as evidence. The expert asked GPC employees to help him remove “Ground Rod 2” because he was unable to pull it out of the ground, but they ignored his request. The expert did not take Ground Rod 2. The ground rods were not owned by GPC. AMLI sued GPC on October 15, 2002. Id. at 358-59.
In October of the following year, GPC deposed AMLI’s expert who opined that the origin of the fire was at Ground Rod 1, which overheated and ignited some pine straw. On February 5, 2004, GPC’s expert deposed that in his opinion the electrical equipment, whether it be GPC’s or AMLI’s, was not involved in causing the fire. GPC’s expert was asked whether he had done any testing, but responded that there was “no testing to be done.” The expert was asked whether another rod from the development could be tested, but stated that you could not know whether such a rod would be representative of the scenario alleged by AMLI to have occurred at the fire scene, in light of a list of unknown facts. Id. at 359.
On March 10, 2004, AMLI’s counsel wrote GPC’s counsel expressing his intention to remove the remainder of Ground Rod 1 as well as Ground Rod 2, and that he presumed that GPC would want representatives present during the process. GPC responded two days later that it did not object to the removal of the ground rods but required that its expert be present. Before March 10, 2004, however, AMLI had arranged for a contractor to search for the remains of the two ground rods, and the contractor had vacuumed dirt in the area. In the process, the contractor had located and removed a portion of Ground Rod 2. The information that a portion of Ground Rod 2 had been removed was not conveyed by AMLI’s counsel’s letter. Id.
On April 12, 2004, GPC’s expert and one of GPC’s attorneys met with AMLI’s expert at the site of the fire. AMLI’s expert arrived at the scene and attempted to remove the rods, but was unsuccessful. AMLI’s expert did not mention that a portion of Ground Rod 2 had already been removed. Before leaving the scene, GPC’s attorney told AMLI’s expert that if AMLI or an AMLI expert attempted to remove the ground rods again that GPC wanted to be notified and that its expert needed to be present for the removal. GPC never received any such notification.
AMLI later engaged a metallurgist who, after performing various tests, opined that Ground Rod 1 could be ruled out as the source of the fire, and that the source was instead Ground Rod 2. GPC’s engineer stated, however, that “[i]t is no longer possible to perform . . . tests with the evidence in its current state.” In his opinion, AMLI’s “theory as to the cause of the fire can never be adequately tested.” Id. at 359-360.
On December 17, 2004, GPC filed its motion to dismiss or, in the alternative, motion in limine on the grounds of AMLI’s spoliation of material evidence. Following a hearing, the trial court ordered that AMLI be precluded from introducing or conveying to the jury, through expert witnesses or otherwise, any evidence whatsoever relating to Ground Rod 2. Id. at 360-61.
In holding that the trial court properly reached a conclusion that spoliation of evidence had occurred, the Court of Appeals stated that: “[A] trial court should weigh five factors before exercising its discretion to impose sanctions: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Id. at 361.
If spoliation of evidence is deemed to have occurred, what sanctions must a spoliating party worry about? As highlighted by the Kitchens court, spoliation sanctions can be severe and should not be taken lightly. As delineated in Kitchens, “[T]o remedy the prejudice resulting from evidence spoliation, a trial court is authorized to craft a solution that fits the facts; the court may ‘(1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence.’ This is not an exhaustive list of sanctions a trial court may impose; rather, ‘the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.’” Id. at 709.
So what are the lessons learned here? The most important lesson learned is that we must allow common sense to prevail when deciding what constitutes, or may constitute, “necessary evidence.” As C.E. Stowe once said: “Common sense is the knack of seeing things as they are, and doing things as they ought to be done.” Err on the side of caution; be vigilant in protecting documents, vehicles, video tapes, logs, electronically stored information, and all other “evidence” that could be deemed important should an issue proceed to litigation. If you have questions, once again, err on the side of caution and get input from your legal advisors as sanctions for evidence “spoiled” can be much too damaging.