Spoliation Law in Georgia

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1 Spoliation Law in Georgia Pamela N. Lee Presented By: Zach M. Matthews Spo li a tion What is Spoliation? Definition of SPOLIATION 1 a: the act of plundering Merriam Webster Dictionary 1

What is Spoliation? Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Abuse of discretion review Bouve & Mohr, LLC v.

2 What is Spoliation? Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Abuse of discretion review Bouve & Mohr, LLC v. Banks Why Do We Care? Trial courts have the power to control the behavior of litigants before them to maintain the integrity of the judicial process, and this power includes the discretion to fashion appropriate remedies for the spoliation of evidence. 2

The Why The policy underlying this inherent power of the courts [to dismiss for spoliation] is the need to preserve the integrity of the judicial process in order to retain confidence that the

3 The Why The policy underlying this inherent power of the courts [to dismiss for spoliation] is the need to preserve the integrity of the judicial process in order to retain confidence that the process works to uncover the truth. Bridgestone/Firestone North American Tire, LLC v. Campbell, 258 Ga. App. 767 (2002) First Things First Two requirements for initial threshold of determining whether there has been sanctionable spoliation: (1) is the evidence at issue necessary to the litigation; and (2) was there contemplated or pending litigation at the time of the spoliation See Padgett v. Kroger, 311 Ga. App. 690 (2011) 3

4 Necessary First Question is whether the evidence was NECESSARY to the litigation Fact specific Not just tangential items that are not relevant and necessary Contemplated or Pending The threshold issue in determining whether there has been spoliation is whether, at the time of the destruction of the evidence, the defendant had notice of contemplated or pending litigation. Silman v. Assoc. Bellemeade, 286 Ga. 27 (2009)(specifically holding Baxley v. Hakiel did not expand the definition of spoliation). 4

5 Potential is Not the Standard... The Silmans contend that... the potential for litigation could exist even where litigation is not actually contemplated or pending,... the Silmans expansive interpretation of Baxley, however is incorrect.... the phrase potential for litigation from Baxley refers to litigation that is actually contemplated or pending, and nothing more... Silman v. Associates Bellemeade, 286 Ga. 27 (2009) Potential Liability Contemplation of potential liability is not notice of potential litigation [T]he simple fact that someone is injured in an accident, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation. Kitchens v. Brusman, 303 Ga. App. 703 (2010) 5

6 Notice is Necessary To meet the standard for proving spoliation, the injured party must show the alleged tortfeasor was put on notice that the party was contemplating litigation. Craig v. Bailey Brothers Realty, Inc., 304 Ga. App. 794 (2010). What Does Contemplated Mean? The Court of Appeals has defined contemplated to mean to view as contingent or probable or as an end or intention, contemplate has been defined as to have in mind as a possibility or plan; expect or intend. 6

Just Intentional or also Negligent? The spoliation of evidence is the intentional or negligent withholding, hiding, altering or destroying of evidence relevant to a legal proceeding.

7 Just Intentional or also Negligent? The spoliation of evidence is the intentional or negligent withholding, hiding, altering or destroying of evidence relevant to a legal proceeding. Just Intentional or Also Negligent? Trend Around the Country is Towards Negligence E.g., In the Interest of AEL & KCM, 181 P (Colo., 2008) See, Cotter & Lee, I.A.D.C. Business Litigation Newsletter, (2010) 7

8 Suggested Strategy 1) Upon first notice of potential litigation preserve/protect evidence 2) After examination & documentation give reasonable opportunity to examine evidence 3) If it is your property set limits time and what allowed $ expense loss of income set price loss of use Set drop dead dates to complete/return to use 4) If it is their property demand ASAP notice Demand preserve/not tamper/don t let degrade, document condition Also demand access and exam What Does Litigation Mean? Notice of a criminal case does not put a party on notice that there will be future civil litigation McLeod v. Wal Mart Stores East, L.P, 2012 U.S. Dist. LEXIS (N.D. Ga. July 18, 2012) Get your parties straight, as well if a party in a completely separate matter puts you on notice, another party may not be able to claim spoliation 8

9 If You Mess Up Court weighs degree of spoliator s culpability against prejudice to opposing party Was party prejudiced by the destruction of the evidence? Can the prejudice be cured? What is the practical importance of the evidence? Did the spoliator act in good or bad faith? What is the potential for abuse (if expert testimony about evidence was not excluded)? Chapman v. Auto Owners Ins., 220 Ga. App. 539, 542 (1996) (Note Courts hold parties seasoned in litigation to a higher standard; the least effective remedy is preferred) What About Third Parties? Spoliation presumption cannot be used against a party who did not destroy as long as there is nothing to suggest the destroyer was acting on the party s behest No Spoliation Sanction unless destroyer is your agent Must vest with authority Insurance company? See Boswell v. OHD Corp., 292 Ga. App. 234 (2008); Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758 (2005); see also Kitchens v. Brusman, 303 Ga. App. 703 (2010). 9

10 What are the Potential Sanctions Most Common Sanctions: Striking pleadings (such as Answer)(extreme) Striking discovery responses Exclusion of certain evidence/testimony Jury instruction Using Spoliation as a Sword Defendants do NOT have to always be on the defense of a spoliation claim Spoliation refers to the destruction of evidence by any party Contemplated litigation prong easier to prove with Plaintiff Particularly if they destroy CRITICAL evidence 10

REAL WORLD EXAMPLES The Document Shredder Insured truck driver shredded documents on the night before his deposition, then admitted on the record that he had done it!

REAL WORLD EXAMPLE #2 The Case of the Missing Surveillance Video Major Atlanta retailer failed to retain video evidence where patron slipped on banana peel Court struck Answer

11 REAL WORLD EXAMPLES The Document Shredder Insured truck driver shredded documents on the night before his deposition, then admitted on the record that he had done it! No spoliation because no prejudice to Plaintiff, BUT driver was crossexamined on shredding at trial. TAKEAWAY: Make sure everyone is on the same page. REAL WORLD EXAMPLE #2 The Case of the Missing Surveillance Video Major Atlanta retailer failed to retain video evidence where patron slipped on banana peel Court struck Answer Verdict $2.3M; $2.0M on retrial Zach s trial for same retailer ended in defense verdict, but only had one of seventeen possible camera views TAKEAWAY: Retain ALL evidence, not just what looks useful at the time. 11

The Missing Black Box Real World Example #3 National trucking carrier began repairs to tractor trailer days after incident and failed to retain black box ECM data.

12 The Missing Black Box Real World Example #3 National trucking carrier began repairs to tractor trailer days after incident and failed to retain black box ECM data. Court struck answer as sanction; case settled. TAKEAWAY: Preserve evidence before conducting repairs! Real World Tips 1. Involve everyone in the evidence preservation discussion, even entry level employees. 2. Make sure store managers and risk managers know the technology so they can retain all important evidence. 3. If repairs or cleanup are necessary to continue business operations, EXPECT a lawsuit and document, retain, and save. 12

13 Thank You! Pamela N. Lee Zach M. Matthews Survey Link: 13

IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA as Administrator of the Estate of Larry Grigsby, Jr. and as Natural Guardian and Next Friend of E.G. and A.G., minors, Case No. 17-A-65909 Plaintiffs,