Spoliation of evidence is defined as not only the intentional destruction of evidence, but also any change or alteration of evidence through neglect, inadvertence,
Spoliation of evidence is defined as not only the intentional destruction of evidence, but also any change or alteration of evidence through neglect, inadvertence, or mistake. In Georgia, a party asserting that evidence has been spoliated must prove: (1) the destruction or failure to preserve evidence; (2) that the evidence is necessary; and (3) that the spoliation occurred when litigation was either contemplated or pending. Contemplation of litigation is easy to detect when an injured party retains an attorney, threatens suit, or sends a standard preservation of evidence letter. However, can spoliation of evidence occur if litigation is not contemplated by the injured party? What if an insurer simply assigns an adjuster to investigate a loss – can contemplation of litigation be derived from the manner and extent to which a loss is investigated? Moreover, is contemplation of litigation by a defendant alone sufficient? This article focuses on a discussion of Georgia Court’s treatment of what constitutes “contemplation of litigation” such that the rules of spoliation are triggered.
“Contemplated” has been defined as “to view as contingent or probable or as an end or intention.” Merriam-Webster’s Online Dictionary, Ed. 2011. “Contemplate” has been defined as “to have in mind as a possibility or plan; expect or intend.” Webster’s New World Dictionary, 3rd College Ed. 1998. “Contemplation” has been defined as “consideration of an act or series of acts with the intention of doing or adopting them.” Black’s Law Dictionary, 5th Ed. 1983. Given that there is almost always a potential for litigation, the relevant question to a spoliation analysis is at what point is litigation actually contemplated. The Georgia Supreme Court addressed this issue in Baxley v. Hakiel Industries, Inc. 282 Ga. 312 (2007). In Baxley, the patron of a pub, after consuming alcohol, was involved in an automobile accident with the plaintiff. The pub learned of its patron’s involvement in the accident the following day and took steps to investigate what the patron had been served. However, the pub failed to secure its videotape surveillance, which was recorded over every four days in the ordinary course of business. The plaintiff filed suit against the pub under Georgia’s Dram Shop Act, which provides that a purveyor of alcohol may be held liable if the purveyor knowingly sells or furnishes alcoholic beverages to a person who is in a noticeable state of intoxication, knowing that the person will soon be driving a motor vehicle. The Georgia Court of Appeals affirmed the trial court’s ruling that there was no evidence that the pub knew the patron would be driving.
The Georgia Supreme Court granted certiorari to consider whether the pub spoliated evidence by allowing the videotape from the night of the accident to be recorded over. The court held that spoliation occurred because: (1) the pub was aware of their customer’s involvement in the accident and took steps to investigate; and (2) the pub owner failed to preserve the recording during its investigation. In sum, based on the pub’s investigation, the court held that the pub was aware of the potential litigation and failed to preserve the videotaped evidence that might have demonstrated whether the patron would soon be driving.
Following the ruling in Baxley, it appeared that a defendant’s knowledge of even “potential litigation” would be sufficient to trigger the rules of spoliation. The Georgia Supreme Court addressed this in Silman v. Associates Bellemead, 286 Ga. 27 (2009). In Silman, the plaintiff was standing on a friend’s deck, when the deck collapsed. Following the collapse, the property owner removed the debris from the site. The plaintiff subsequently filed suit against the property owner, asserting that the property owner spoliated evidence by destroying the deck despite knowledge that litigation would ensue. The Georgia Court of Appeals affirmed the trial court’s grant of summary judgment to the property owner, holding that there was no evidence that the property owner knew of a construction defect. The Georgia Supreme Court granted certiorari to determine whether the court of appeals erred by failing to apply the Baxley decision. The plaintiff asserted that because the potential for litigation could exist even where litigation is not actually contemplated or pending, the use of the phrase “potential for litigation” in Baxley expanded the spoliation standard. The Georgia Supreme Court affirmed the lower court’s decision, holding that the court’s use of the phrase “potential for litigation” in Baxleyrefers to litigation that is actually “contemplated or pending,” and nothing more.
Although the Georgia Supreme Court in Silman confirmed that “potential for litigation” does not equate to “contemplated” or “pending litigation,” Silman did not address which party must contemplate litigation in order to trigger the rules of spoliation. A review of Georgia case law confirms that Georgia Courts do not specify between a plaintiff and a defendant’s contemplation of litigation. Rather, Georgia Courts take a case-by-case approach to (1) determine the extent to which the injured party indicates that litigation will ensue; and (2) analyze whether the defendant’s post-incident actions alone reveal a recognition or acceptance by the defendant that litigation will ensue.
For example, the Georgia Court of Appeals in Silman held that the fact that someone is injured in an accident, without more, is not notice that the injured party contemplated litigation sufficient to trigger the rules of spoliation. 294 Ga. App. 764 (2008). On the other hand, the pub owner’s failure to preserve evidence during its investigation in Baxley, without any suggestion of litigation from the injured party, was sufficient recognition by the defendant that litigation was contemplated.
As indicated above, there are instances in which contemplation of litigation is easy to spot, including receipt of a preservation of evidence letter or pre-litigation discussions with either an injured party or the injured party’s counsel. More difficult are the situations where one must glean from the facts and circumstances that litigation is contemplated. These include, but are not limited to: (a) knowledge of related suits by the injured party; (b) facts or circumstances that could reasonably lead to litigation, such as obvious negligence in causing an injury; (c) investigations by either party; (d) the scope and extent of investigations by the potential defendant; and (e) what is or should be known by the potential defendant with regard to the cause of the loss, facts giving rise to the loss, and the potential defendant’s involvement in the loss itself.
In sum, because actions by a potential defendant, such as investigating, can suggest that litigation is contemplated, all post incident actions should be governed accordingly. This includes, but is not limited to preserving evidence after receipt of a preservation letter; taking affirmative steps to preserve evidence that has a finite lifespan; and ensuring that investigators and adjustors are aware of potential spoliation issues prior to conducting their investigations. Understanding that the individual facts and circumstances surrounding each loss will be examined when there is an accusation of spoliation allows for preemptive planning with regard to the means and manner in which post incident investigations are conducted and evidence preserved.