The fastest and most effective way for a party to lose an otherwise defensible case is to be sanctioned for spoliating evidence. In Georgia, spoliation is defined as the
The fastest and most effective way for a party to lose an otherwise defensible case is to be sanctioned for spoliating evidence. In Georgia, spoliation is defined as the “destruction of evidence necessary to pending or contemplated litigation.” When a party destroys or significantly alters evidence, trial courts have wide discretion to fashion sanctions on a case by case basis. After concluding that a party has spoliated evidence, the Court must consider five factors when crafting the appropriate sanction, including (1) whether the moving party 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 alleged spoliating party acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Sanctions can range in severity from the minor to severe including the harshest sanction of striking a party’s liability defenses.
A trial court’s decision on spoliation issues is reviewed on appeal for “abuse of discretion.” In plain English this means that the trial court’s decision will usually be upheld unless there is a complete absence of evidence to support it or a flagrant error of law. The trial court’s ruling on a spoliation motion is going to be the best, clear chance to get a complete review of the case and it is therefore critically important to identify and respond to potential spoliation problems early in a case and assure the creation of an accurate, detailed record. If it turns out that evidence has been destroyed, it is particularly important to build an accurate (and detailed) record, not only as to how the information was lost, but as to precisely what information has been lost. The only thing worse than being sanctioned for spoliating evidence, is being sanctioned for spoliating evidence that never existed in the first place!
This issue is of particular concern in automobile accident cases which involve “Electronic Control Modules” (“ECMs”) or other devices that monitor vehicles. As used here, the term “ECM” or “Electronic Control Module” is a generic term referring to a device that monitors and, under certain circumstances, stores data related to the operation of various components of a vehicle (i.e. speed, braking, percent throttle, status of brakelights, turn signals, etc.) The type and amount of information that is stored, and the circumstances under which it is stored, vary from one ECM to another. Most modern passenger cars contain at least a rudimentary ECM or other computer, and commercial vehicles are often equipped with more sophisticated devices or even multiple systems that can report on location, dispatch information, etc. It is not safe to assume that a vehicle lacks recoverable electronic data simply because it was not built within the past few years. We learned in one case that an early variation of an ECM was attached to the airbag system in a 2002 Chevy S-10 pickup!
ECMs vary from vehicle to vehicle and it is critical to make sure the record is clear as to precisely what type of information is stored by the specific device that is at issue in your case, what circumstances would cause that data to be stored or saved on a long term basis, and what would cause the data to be erased. This information should come from skilled, knowledgeable experts or even the manufacturer of the automobile. Opposing witnesses who contend they know what was stored in an ECM must be “pinned down” on the basis for this belief. Defense witnesses who are not trained to analyze or download the devices should be encouraged not to speculate or guess as to the contents of an ECM under any circumstances, and to avoid the natural tendency to try to “fill in gaps” in their knowledge during depositions.
The importance of a clear record is emphasized by the recent Court of Appeals ruling in Select Sentry Ins. Co. v. Treadwell, 2012 WL 5936004, __ S.E.2d. __ (Nov. 28, 2012) In that accident, Plaintiff Essie Treadwell, a passenger in a pick-up truck that was towing a car, was injured when a tractor-trailer operated by Tony Martin rear-ended the towed car. Treadwell filed suit against Martin; his employer, J.H.O.C., Inc.; and their insurer, Select Sentry Ins. Co. (presumably under Georgia’s direct action statute). Plaintiff then filed a motion to sanction Defendants for spoliating three types of evidence: (1) Martin’s driver logs; (2) data from a “GeoLogic” system; and (3) data from an “Electronic Control Module” (“ECM”) that had been downloaded by the Defendants. The trial court granted the motion, finding that Defendants had also spoliated a fourth category of evidence that was not referred to in Plaintiff’s motion: (4) the “results of their investigation” into the accident.
On appeal, the Defendants argued that the trial court erred by sanctioning them for spoliation of the GeoLogic data and ECM data because (1) the GeoLogic data did not exist and (2) the ECM data had been downloaded from Martin’s truck and provided to Plaintiff’s counsel, but there was no evidence that the evidence she sought had been destroyed in the download process. Defendants also argued that the trial Court erred by sanctioning them for the destruction of the unspecified “investigative results,” but did not argue the trial Court erred by ruling that the driver logs had been spoliated.
The evidence regarding the GeoLogic data and ECM modules demonstrate the importance of generating a record consisting of testimony provided by knowledgeable witnesses. The Trial Court relied upon deposition testimony by at least two witnesses about the GeoLogic data. JHOC’s executive vice president testified that GeoLogic was an electronic satellite based system used to dispatch drivers that could also have tracked the locations of JHOC’s drivers; that the dispatch records were maintained in a central database; and that the records had been purged from JHOC’s system. The company’s risk manager also testified that he reviewed the GeoLogic printout from the relevant timeframe, with the driver. The Court of Appeals therefore upheld the finding for spoliation of the GeoLogic because there was evidence that the data existed and had been destroyed.
By contrast, there was no evidence that the ECM data that Plaintiff complained of had ever existed. Defendants downloaded data from the ECM from Martin’s truck which contained information about its “engine parameters.” Plaintiff contended that, if Defendants had used different software to download the device, it would also have contained information about whether the truck had engaged in “hard braking.” Plaintiff was unable to support this position on appeal, and conceded that her expert offered no testimony about this issue. By contrast, Defendants’ expert testified that the ECM would not have contained the type of “hard brake” information at issue.
The Court of Appeals held that the Trial Court abused its discretion by sanctioning the Defendants for the destruction of data that was never stored on the ECM in the first place. “It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in control of the party.” The Court of Appeals also reversed the ruling below to the extent that it sanctioned Defendants for spoliation of unspecified “investigation results,” because Plaintiff had neverasked for such a sanction and because it was not clear from the order what “results” were at issue. The case was remanded to the trial Court for reconsideration as to the proper extent of sanctions based on spoliation of the logbooks and GeoLogic data. The case, although the case was not a complete “win” for the Defendants, reflects a recognition by the Court of Appeals that an order of sanctions for spoliation must be based on at least some evidence.