Has an attorney sent you a letter demanding that you provide or preserve evidence, such as security videos, which is potentially relevant to a case? Have you wondered if a claimant is destroying or hiding any evidence which would impeach the claimant’s case? These questions involve the duty to preserve potentially relevant evidence. Spoliation is the intentional, or negligent, destruction of potentially relevant evidence which a party has a duty to preserve.
Has an attorney sent you a letter demanding that you provide or preserve evidence, such as security videos, which is potentially relevant to a case? Have you wondered if a claimant is destroying or hiding any evidence which would impeach the claimant’s case? These questions involve the duty to preserve potentially relevant evidence. Spoliation is the intentional, or negligent, destruction of potentially relevant evidence which a party has a duty to preserve. Good claims handling includes a basic understanding of when a duty to preserve evidence is triggered, taking affirmative steps to preserve evidence, and remembering that claimants also have a duty to preserve evidence.
Although there are not, yet, any appellate case law which applies specifically to spoliation in the workers compensation context, we know that O.C.G.A. 34-9-102 specifically mandates that the Georgia Civil Practice Act applies to workers compensation cases. The duties and rights set forth in the spoliation case law, therefore, apply to workers compensation cases. Claimant’s attorneys will likely be eager to use spoliation accusations to their advantage. On the defense side, we are always seeking evidence that a claimant has failed to preserve evidence, and ought to be sanctioned.
In the past three years, the Georgia Supreme Court has issued two important opinions which define when the duty to preserve evidence arises in civil litigation. Spoliation is the “destruction or failure to preserve evidence which is relevant to contemplated or pending litigation [Cit} (emphasis supplied),” Phillips v Harmon 297 Ga. 386, 774 S.E.2d 596 (2015) at 297 Ga. 386, 393, 394. The sanctions for spoliation include a rebuttable, or conclusive, presumption that the evidence was destroyed because it was damaging to the case of the party destroying the evidence, striking claims or defenses, or even the outright dismissal of claims or defenses.
To prove that another party is guilty of spoliation, it must first be shown that the party which destroyed the evidence had a duty to preserve the evidence. Historically, in Georgia, a defendant in a civil case had no duty to preserve evidence until formal notice of a potential claim was given by a prospective plaintiff. The Phillips case cited supra, and the case of Cooper Tire and Rubber Company vs. Koch S17G0654, 2018 WL 1323994, 812 S.E.2d 256 (Ga. Mar. 15, 2018) expanded this duty. Phillips holds that defendants can have “constructive knowledge” of a pending claim or litigation depending upon numerous factors such as the severity of the injury or damage, past practice between the parties, and prior experience with similar cases or situations.
In the context of workers compensation claims, the employer/insurer’s duty to preserve evidence likely arises when notice is provided of an on the job injury. Notice is easy to prove; a claimant must only provide the employer with enough information to realize that an on the job injury may have occurred. Once an employer is aware that a workers compensation claim is or could be pending, the employer should start preserving evidence. The duty to preserve evidence will frequently arise before the employer/insurer hears from an attorney, or a workers compensation claim is formally filed.
The Cooper Tire case confirmed that plaintiffs also have a duty to preserve evidence when a reasonable person, in plaintiff’s position, knows or should know, that litigation is contemplated or pending. Generally, that duty arises when the individual discusses any potential claim with an attorney. The duty could also arise if an allegedly injured worker makes threats, about filing a claim or receiving a big settlement, to the employer or an adjustor.
WHAT SHOULD BE PRESERVED?
It is better to save too much evidence than too little. Evidence which is saved can be located and produced if necessary. Evidence which is destroyed may not be recoverable. If not, cases will be more difficult to deny or otherwise properly defend. Electronically stored information can be destroyed or deleted if appropriate actions are not taken. The explosion of electronically stored information, (“ESI”), creates new spoliation issues. Information which an insured has, such as emails and security footage, may be automatically deleted, or taped over, respectively, to save storage space on the company’s network server.
There is probably more information to be saved than many employers realize. For example, if there is security footage, what should be saved? If the claimant alleges an injury in a particular part of a plant, at a particular time, and there is a security camera showing that part of the plant, that video must be saved. Most companies will loop over, or copy over, security footage anywhere from every three days to every 30 days. When an injury occurs, be aware of the duty to preserve potentially relevant video and preserve it. If there is security footage outside the employer’s location, that video may have to be saved as well. When an injury is reported, check for video showing the claimant leaving that location that day; if a claimant returns to light duty work, and there is security video of the claimant performing some or all of those duties, preserve that video. Saving video documenting that an injury did (or did not) occur is not necessarily enough. There may be other pertinent footage, or an ongoing duty to preserve pertinent claim information.
Assume that a claimant alleges that he injured himself at 1:20 PM, in the employer’s warehouse, while lifting some boxes. The claimant identifies where he was working, and what he was lifting, at the time of the alleged injury. Someone with the employer checks the security footage for that date and time in the area where the claimant was working. The footage reveals no injury or unusual occurrences at the time of the alleged injury or at any time during the shift. That same person with the employer also locates security footage of the claimant limping for a few steps upon leaving the plant but then starting to walk normally before he arrives at his car.
This case, obviously, should be controverted. Will the employer win in court? If the employer remembers to locate and preserve this video footage, the case should be a “slam dunk” for the employer.
Now assume the same facts, except nobody with the employer remembers to check the videos. Alternatively, after reviewing the video, the employer does not preserve it. A week later, that video is taped over according to company policy. The claimant hires an attorney who sends a spoliation letter to the employer/insurer demanding copies of any pertinent videos. Those videos no longer exist. Upon learning that the employer destroyed the videos, claimant’s attorney accuses the employer of spoliation and seeks sanctions. The ALJ determines that spoliation occurred because the employer had a duty to preserve the video, when notice was given of an injury, did not preserve it, and infers that the video was not preserved because it was damaging to the employee’s case. If the video was as good as the employer claims, why was it not preserved? The ALJ presumes that the employer destroyed the evidence because it was damaging to the employer’s case. The claimant then prevails at the hearing.
Do you understand the importance of preserving evidence? A case which should be a winner can be turned into a loss because of poor claims handling procedures. Many large employers have tech support employees whose job duties include providing appropriate assistance, to other employees, with preserving evidence. This evidence is not limited to videos; relevant evidence will include emails, and all potentially relevant documents saved in a company’s computer network. If a company automatically deletes emails more than 30 days old, to save storage place, the company must affirmatively take steps to save and preserve pertinent emails. Relevant evidence can also include things such as texts, GPS information, and cell phone records.
Courts typically expect companies, with experience litigating workers compensation and other cases, to have procedures in place to insure that potentially relevant evidence is preserved. Ignorance is no excuse for companies who deal with litigation on a regular basis.
INJURED WORKERS MUST ALSO PRESERVE EVIDENCE
The good news is that spoliation also applies to claimants. For example, Georgia law allows discovery questions to be asked about vacations, work activities, or activities inconsistent with the claimant’s alleged restrictions, which are posted, described or depicted on social media. Once a social media background check is conducted, and particularly if any good evidence is located, then a spoliation letter can be sent to the claimant or claimant’s attorney. The timing of the spoliation letter will depend on the circumstances of the case. In some situations, you may want to give a claimant the opportunity to share some good impeachment materials. As a general rule, a spoliation letter is appropriate when you know, or strongly suspect, that the claimant may have photos, video, or cell phone records which could help your defense.
Spoliation arises in contexts outside social media. For example, if a claimant receiving opioid prescriptions has inconsistent drug screen results, and you suspect that the claimant is buying or selling opioids illegally, send a spoliation letter demanding that all cell phone information be preserved. A person buying or selling drugs illegally is unlikely to keep detailed records for law enforcement (or claims adjustors) to find.
Will a claimant actually preserve and provide information which demonstrates illegal drug transactions? It is highly unlikely. A forensic examination of the phone, however, might reveal something such as texts, to someone with no last name, saying things like “meet me behind the gas station at 10:30 tonight,” and that the claimant deleted these texts. This sort of information can be correlated with other information such as when a claimant had a prescription filled. It is important to preserve and forensically examine items even if just to document that a wealth of information seems to have been recently deleted. Additionally, just the threat of having to turn over damaging information may serve to discourage a claimant from pursuing a case at all, or to seek a quick settlement.
Every claims investigation should include taking appropriate steps to identify and preserve potentially relevant evidence. Remember that spoliation is not just the intentional destruction of evidence. A failure to take adequate steps to preserve evidence is also spoliation. Good claims handling procedures, and the preservation of information, will help you investigate claims and achieve good results defending frivolous cases. Demanding that claimants preserve, and provide, potentially relevant evidence is a legitimate defense strategy which can lead to excellent results in fraudulent claims as well.