Spoliation is the “destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Kitchens v. Brusman, 303 Ga. App.
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 667, 669 (2010) (internal quotations omitted). Destroying or failing to preserve evidence can wreak havoc on the ability to defend a case. This is not just because evidence is missing or destroyed. A court has the wide discretion to craft sanctions against the party who compromised the evidence, even if it was an innocent mistake. This article will discuss the Kitchenscase, where a seemingly innocent mistake was deemed to be spoliation. This article will also discuss the meaning of “contemplated or pending litigation” and touch upon the possible sanctions that a court can impose.
Spoliation occurs when there is contemplated or pending litigation and necessary evidence is either not preserved or destroyed. In Kitchens v. Brusman, the Plaintiff’s wife had a biopsy of breast tissue in 1997. The tissue was sent to a pathologist who made slides of the tissue, analyzed the slides, and opined that there was no cancer or malignant tissue. About two years later, another doctor diagnosed Plaintiff’s wife with breast cancer, which did not respond to treatment. Plaintiff’s wife died about three years after the initial biopsy. The Plaintiff brought suit against the pathologist, his laboratory, and other entities for failing to analyze properly the tissue sample.
In 1997, the pathologist made a slide from the tissue sample taken in the biopsy and retained the remaining tissue so that additional slides could be made if necessary. The pathologist made slides from other tissue samples that had been taken from Plaintiff’s wife at later dates. The laboratory where the pathologist worked had a retention policy that required tissue samples to be kept for five years. Under this policy, the tissue sample from the breast biopsy should have been kept until November 2002. The lab would periodically destroy samples of tissue based on their age, however, it kept no records of what or when samples were destroyed.
In August 2002, Plaintiff’s attorney requested slides of the tissue samples of Plaintiff’s wife from the pathologist’s secretary. The pathologist picked out slides and gave them to his secretary to pass on to the Plaintiff’s attorney. There was no evidence as to any discussion that may have occurred between Plaintiff’s attorney, the pathologist, or the pathologist’s secretary when the Plaintiff’s attorney obtained the slides. Three months later, Plaintiff filed suit against the pathologist and others.
Immediately after being served with the lawsuit, the pathologist went searching for the 1997 tissue sample. He could not find it. It came out during discovery that the lab did not have any tissue samples from 1997 or before. The Plaintiff claimed that the evidence had been spoliated and moved for sanctions. The defendants contended that the tissue sample must have been destroyed in an overly-broad purging of tissue samples. The trial court denied Plaintiff’s motion for sanctions based on spoliation, finding that there was no spoliation and that sanctions were not merited.
On appeal, the Georgia Court of Appeals discussed the meaning of contemplated or pending litigation. Three months before suit was filed, the Plaintiff’s attorney requested slides of tissue samples. The pathologist knew that Plaintiff’s attorney was the one requesting the slides. This was enough to put the pathologist on notice that there was contemplated litigation. Plaintiff’s attorney did not send a demand letter, did not request that the tissue sample be preserved, and there was no evidence of a conversation between the pathologist and the attorney. The Court also noted the tissue sample was not discovered to be missing until after the pathologist had been served with the lawsuit. Even though there was no evidence as to when the tissue sample was destroyed, the Court of Appeals reversed the trial court’s decision. The Court held that the trial court abused its discretion both in finding that there was no spoliation and for failing to fashion sanctions.
There are three typical remedies to spoliation: (1) a jury charge that there is a rebuttable presumption that the evidence would have been harmful to the spoliator; (2) exclude testimony about the evidence; or (3) dismiss the case. This list is not exhaustive, and the trial court has broad discretion in fashioning a remedy. Kitchens, 303 Ga. App. at 709, 694 S.E.2d at 672-73.
In Kitchens, there was no evidence of foul play. A reasonable explanation was that someone made a mistake and destroyed samples earlier than they should have been. There was no even evidence that the tissue sample had been destroyed after the attorney requested the slides, which was the event that the Court held gave notice of contemplated litigation. The pathologist discovered that the sample had been lost or destroyed immediately after being served with the suit. No one could prove when the sample was actually destroyed. However, the result of this seemingly innocent mistake was an instruction from the Court of Appeals that the trial court needed to fashion a sanction for spoliation of evidence.