Todd M. Yates, Esq.

Over the past several years, I have been confronted in cases with the disturbing trend of defendants, (mainly large grocery store chains), losing, failing to retain, or destroying evidence related directly to the incident which caused my client to be injured. Under Georgia law, a party who is responsible for the destruction or failure to preserve evidence necessary for contemplated or pending litigation is deemed to have “spoliated” such evidence. If a trial court determines that a party is responsible for the spoliation of evidence, numerous remedies are available. They range from the judge instructing the jury that it may be presumed that the evidence was harmful to the spoliator to the striking of the spoliator’s pleadings.

For many years, trial court judges took the hard-fast position that the party who “lost” such evidence had to possess actual knowledge that litigation was contemplated at the time the evidence “went missing.” As one would expect, the innocent party who did not destroy evidence was hardly ever afforded a remedy because the party who destroyed the evidence would always claim that he had no knowledge that litigation was contemplated. Conversely, I would argue that while notice from a party that a claim will be made is sufficient to trigger the duty to preserve and maintain evidence, it is not always required. In other words, under some circumstances, notice of contemplated litigation can be constructive, ie. the party destroying the evidence “should have known” that litigation was contemplated. Unfortunately, my argument fell mainly upon deaf ears.

I must admit that I now feel vindicated because the Georgia Supreme Court recently held, in a unanimous opinion, that the argument I made for years is valid which marks a big change in Georgia’s spoliation law. In Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015), the Georgia Supreme Court tremendously expanded the breadth of a party’s responsibility to preserve evidence. The Phillips case was a medical malpractice action against a nurse midwife, an OB/GYN physician, and a hospital. The plaintiffs alleged that their child was born with severe birth defects as a result the defendants’ negligence in failing to take appropriate action when their child began to suffer oxygen deprivation during birth. It is matter of routine medical procedure for a machine to monitor the baby’s heartrate during delivery. The machine produces fetal monitor strips which reflect any variation in the baby’s heartrate and signs of the baby being in distress from lack of oxygen. There was evidence in the case that the nurses made notes on the monitor strip but, pursuant to a standard hospital policy, the monitor strips were destroyed 30 days after the a baby is born.

Immediately after the birth of the Phillips’ child, the hospital launched an internal investigation which involved the questioning of personnel, subsequent notification to its insurance carrier, and contacting attorneys for the hospital. The plaintiffs contended that once the hospital initiated its internal investigation, the hospital was required to obtain and preserve evidence including the fetal monitor strips.

The plaintiffs requested the trial court judge to give a spoliation charge but the judge refused resulting in a jury verdict for the defendants. The plaintiffs appealed but the Georgia Court of Appeals relied upon prior case law finding that the defendants did not have notice of “pending or contemplated” litigation when it destroyed the fetal monitor strips. Relying upon several previous opinions, the Georgia Court of Appeals held that the potential defendants did not have a duty to preserve evidence until potential plaintiffs gave notice of a possible claim. The plaintiffs appealed to the Georgia Supreme Court.

The Georgia Supreme Court found that the court of appeals’ analysis “missed the mark” and reversed. In this regard, the court held that “the 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.”

It appears to me that the Georgia Supreme Court recognized that under the “contemplating and pending” litigation standard, plaintiffs were treated different and unfairly as compared to defendants. Specifically, the “contemplated or pending” label does not address the question as to which party is “doing the contemplating.” For example, “[a]s to 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.” The supreme court held that notice of a plaintiff contemplating litigation can be actual or constructive, and likewise, a defendant’s actions after an incident “may demonstrate [the defendant’s] constructive notice” that litigation was reasonably foreseeable.

In addressing what factors will be evaluated in determining if litigation is reasonably foreseeable, the Court held that a defendant’s own actions could be relevant. Constructive notice could be based upon other circumstances, such as:

• The type and extent of the injury;
• The extent to which fault for the injury is clear;
• The potential financial exposure if faced with a finding of liability;
• The relationship and course of conduct between the parties, including past litigation or threatened litigation; and
• The frequency with which litigation occurs in similar circumstances.

The Court also held that it may be appropriate to consider:

“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.” The court concluded by holding that “certainly a trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse.”

The Georgia Supreme Court’s decision in Phillips will certainly allow more latitude to impose sanctions against defendants who do not maintain records following an injurious incident. These sanctions could range from anything to a spoliation charge, fact preclusion and even the striking of a defendant’s answer. The Phillips case may also assist plaintiffs even in an otherwise defensible case based upon the actions of a defendant post-accident and what evidence he chooses to obtain, retain and preserve. Consequently, I believe that the Phillips case is the most import spoliation decision in Georgia and it will have the long-lasting effect by changing the manner a trial court uses its discretion in applying appropriate remedies when a party loses or destroys evidence while litigation is reasonably foreseeable.