Recent Updates on Spoliation in Georgia
The hack of the cheating website Ashley Madison reminded me of the great lengths people will go to cheat. People cheat on all sorts of things like sports, tests, and as Ashley Madison reminded us, their spouse. Some parties also cheat in litigation by destroying evidence their adversary needs to pursue their claim. Lawyers often refer to this kind of cheating as the spoliation of evidence.
“Spoliation” is the term used to describe the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. Howard v. Alegria, 321 Ga. App. 178, 179 fn. 3 (2013). Such conduct creates the presumption that the evidence would have been harmful to the person who destroyed or failed to preserve the evidence. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 845 (2012). “However, in order for the injured party to pursue a remedy for spoliation, the party who destroyed the evidence must have been under a duty to preserve the evidence at issue.” Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015) citing Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (2013).
Until recently, Georgia courts routinely declined to sanction parties who destroyed evidence unless it could be shown that the sanctioned party had actual notice of contemplated litigation. In Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015), a unanimous Georgia Supreme Court made the most of an opportunity to clarify that “actual notice of contemplated litigation” is not required to impose upon a party the duty to preserve evidence.
Phillips was a medical malpractice case in which the Plaintiffs alleged that the Defendants negligently monitored and responded to a babies’ heart decelerations and periods of bradycardia resulting in oxygen deprivation shortly before birth, resulting in severe and permanent neurological injuries. The destroyed evidence at issue were printed paper strips of the electronic monitoring of the babies’ fetal heart rate and there was some evidence that there were nursing notations on the printed strips. The hospital maintained the monitoring strips for 30 days and then destroyed them pursuant to their routine policies and procedures.
In its discussion of when the duty preserve evidence arises, the Georgia Supreme Court held:
[T]he 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.
In regard to the injured party, usually the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is foreseeable to the plaintiff at that point. As to the opposing party, usually the defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of “notice” to the defendant.
Certainly, the defendant’s knowledge that the plaintiff is contemplating litigation may come when the plaintiff provides actual or express notice of litigation. And, such notice can be constructive as well as actual.
Phillips at *7 (emphasis added). The Court went on to explain that notice to the defendant that the plaintiff is contemplating litigation may be derived from other factors such as:
1. The type and extent of the injury;
2. The extent to which fault for the injury is clear;
3. The potential financial exposure if faced with a finding of liability;
4. The relationship and course of conduct between the parties, including past litigation or threatened litigation; and
5. The frequency with which litigation occurs in similar circumstances.
Phillips at *7. The Court then reasoned:
[I]t 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.
Phillips at *7. In light of the Phillips opinion, Plaintiffs can still pursue a spoliation claim even when the defendant destroys relevant evidence prior to receiving actual notice of contemplated litigation from the Plaintiff.
Nevertheless, if you have been injured due to the negligence of another, it is in your best interest to retain an attorney as soon as possible so that the attorney can promptly notify the at fault party of contemplated litigation and demand that relevant evidence be preserved.
