Preservation of documents and tangible evidence relating to an alleged injury is essential when defending a lawsuit. Everything from policies and procedures to work logs and surveillance footage could potentially be discoverable when defending a claim. Navigating the fine line between preserving evidence based upon notice of a claim and destroying evidence in the normal course of business is tricky at best. Recently, Georgia law determining whether a party had notice of a claim in terms of spoliation of evidence was just expanded by the Georgia Supreme Court.
Preservation of documents and tangible evidence relating to an alleged injury is essential when defending a lawsuit. Everything from policies and procedures to work logs and surveillance footage could potentially be discoverable when defending a claim. Navigating the fine line between preserving evidence based upon notice of a claim and destroying evidence in the normal course of business is tricky at best. Recently, Georgia law determining whether a party had notice of a claim in terms of spoliation of evidence was just expanded by the Georgia Supreme Court.
Pursuant to Georgia law, “[s]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Baxley v. Hakiel Industries, Inc., 282 Ga. 312, 313, 647 S.E. 2d 29 (2007) (citing Bouvre & Mohr, LLC v. Banks, 274 Ga. App. 758, 762, 681 S.E. 2d 650 (2005)). The destruction of such evidence “‘creates the presumption that the evidence would have been harmful to the spoliator.’” Id. (citing Amer. Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 605 S.E. 2d 850 (2004)); see also O.C.G.A. § 24-4-22. “Proof of spoliation raises ‘a rebuttable presumption against [the spoliator] that the evidence favored [the spoliator’s opponent]…’” Id. (citing Lane v. Montgomery Elevator Co,, 225 Ga. App. 523, 484 S.E. 2d 289 (1997)).
An essential element to finding spoliation of evidence is whether the spoliator had notice that litigation was contemplated. Indeed, “in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.” Phillips v. Harmon, 297 Ga. 386, 393-94, 774 S.E.2d 596, 603 (2015) (citing Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga.App. 801, 807(6), 748 S.E.2d 281 (2013)). Until recently, Georgia law held that a defendant’s duty to preserve evidence only arose when the injured party had provided actual or express notice of litigation. The fact that a person suffered an injury alone did not trigger sufficient notice of contemplation of litigation to trigger preservation requirements. See Craig v. Bailey Bros. Realty, Inc., 304 Ga. App. 794, 796-97, 697 S.E.2d 888, 891 (2010). However, the Georgia Supreme Court recently disapproved of this holding, instead re-interpreting and expanding its prior definitions of “contemplation of litigation.”
In Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015), the plaintiff brought a medical malpractice claim against a mid-wife and hospital alleging that the defendants’ negligence caused the plaintiff to suffer oxygen deprivation before birth, resulting in permanent neurological injuries. Prior to trial, plaintiff requested the trial court charge the jury on the defendants’ spoliation of evidence. Specifically, plaintiff alleged defendants destroyed paper strips, which were printed from plaintiff’s fetal heart rate monitor and showed signs that the baby was in distress prior to birth.
Pursuant to the hospital’s record retention policy, the strips were destroyed 30 days post-delivery. While these strips were not considered part of the official hospital record, the nurses would often take notes on these strips and refer back to them when completing an official medical record. Indeed, in this case, there was some evidence that there were nursing notations on the printed strips concerning the timeliness of medical response to signs of fetal distress that were not made part of the official record. Additionally, prior to receiving notice of litigation from the plaintiff, and prior to destroying the paper strips, the hospital invoked its medical errors investigation protocol, which included the hospital launching an internal investigation and notifying its insurance carrier of the incident, as well as contacting legal counsel.
The trial court declined to charge the jury on spoliation, finding that the defendants had no knowledge or notice of potential litigation prior to the destruction of the evidence pursuant to the hospital’s record retention policy. The Court of Appeals upheld the trial court’s finding, also holding that the defendants did not have notice of pending or contemplated litigation at the time the paper slips were destroyed. However, the Georgia Supreme Court reversed the lower courts, finding that both had erroneously interpreted the Court’s prior legal precedent.
In reversing the case, the Georgia Supreme Court first 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.” Phillips, 297 Ga. at 396 (emphasis added). In addition to receiving actual notice from a plaintiff, the Court held that litigation may be reasonably foreseeable to the defendant based upon other circumstances, including:
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. Thus, it may be appropriate to consider, in determining whether the defendant actually did or reasonably should have foreseen litigation by the plaintiff, not only what the plaintiff did or did not do after the injury and before the evidence in question was lost or destroyed, but also what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation.
Id.
In essence, Georgia law now holds that that any defendant can be placed on notice of a plaintiff’s contemplation of litigation by circumstances other than the actual or express notice of the plaintiff. While no one knows how far the Georgia Courts will take this ruling, it would be both impossible and impractical for businesses to maintain every document ever created for fear of being on the wrong end of a spoliation sanction. However, the duty now appears to require a defendant to preserve documents and evidence in instances where they themselves contemplate litigation and begin taking steps in anticipation of litigation prior to receiving any notice of a claim. Accordingly, in instances where a defendant knew or reasonably should have known that an injured party is contemplating litigation, it is always better to err on the side of preservation.
Of course, while the burden to preserve has likely expanded, the potential sanctions for destruction of evidence have not. Where the a court finds that a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis. AMLI Residential Properties, Inc. v. Georgia Power Co., 293 Ga. App. 358, 361, 667 S.E. 2d 150 (2008) (citing Bouvre & Mohr, LLC v. Banks, 274 Ga. App. at 762 (2005). Sanctions for spoliation of evidence may include: (1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator. See Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542-43, 469 S.E. 2d 783 (1996). The Georgia Courts have cautioned that a rebuttable presumption jury is to be given as a sanction for spoliation of evidence only in exceptional cases, and in considering the giving of such an instruction, “the trial court should consider both prejudice to the party seeking the charge and “whether the party who destroyed the evidence acted in good or bad faith. Phillips, 297 Ga. at 398-99.