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Posted by Susan J. Levy

In spite of the increasing number of spoliation claims crossing our desks, plaintiffs are not automatically entitled to sanctions every time a piece of evidence once in defendant’s control is no longer available. In Georgia, a party asserting that evidence has been spoliated must prove: (1) the destruction or failure to preserve evidence, and (2) that the evidence is necessary, (3) to contemplated or pending litigation, before they are entitled to the any sanctions against the spoliator. Baxley v. Hakiel Industries, Inc., et al., 282 Ga. 312, 313 (2007).

In determining whether spoliation sanctions are warranted, Georgia courts consider the following factors: (1) whether the non-spoliating party was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the spoliator acted in good or bad faith; and (5) the potential for abuse if expert testimony regarding the evidence is not excluded. Nat’l Grange Mut. Ins. Co. v. Hearth & Home, Inc., 2006 U.S. Dist. LEXIS 97675, *10,*11 (2006) Then, if the court has determined that there has been spoliation, and that sanctions are warranted, the court can decide what sanction to impose. Id.

By now you have probably heard of a recent spoliation case that strikes fear in the heart of every defense lawyer, insurance adjuster, and our clients. For those of you who have not, you can read the decision at Kroger v. Walters, 319 Ga. App. 52 (2012). In Walters, a slip and fall case involving a banana, the trial court struck Kroger’s answer on the grounds that Kroger had spoliated evidence (a surveillance video) and acted in bad faith, thereby precluding Kroger from introducing evidence at trial to contest its negligence. While the Court partially reversed the $2.3 million verdict and remanded for a new trial on causation, damages and the claim for attorneys’ fees, it upheld the trial court’s order on spoliation based on the following:

[Evidence that] Kroger had destroyed the video from the date and time of the incident by not preserving it; that the video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor; that the Customer Incident report states that it was made in anticipation of litigation; . . .that the camera was ‘centered on the exact location of Walters’ fall and not the location shown in the prior images produced by Kroger and could have clearly shown the exact conditions at the time of Walters’ fall and whether Kroger employees knew or should have known of the dangerous condition in that area.’ Walters, 319 Ga. App. at 55.

Most of our cases, thankfully, do not involve conduct as egregious as was alleged in Walters and Georgia courts have shown a willingness to deny plaintiffs’ spoliation motions. For example, in the more recent Court of Appeals decision in Powers v. Piggly Wiggly, 2013 Ga. App. LEXIS 212 (March 18, 2013), Plaintiff fell while exiting the store and later filed a motion for spoliation after the store had taped over the incident in the ordinary course of business. The Court affirmed the trial court’s refusal to impose sanctions for spoliation, relying on the store manager’s timely response and follow-through, and his understandable reliance on Plaintiff’s initial indications that she was uninjured.

The Court in Powers also relied on previous decisions, noting that “[s]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. …We have held that [the mere] contemplation of potential liability is not notice of potential litigation. . . . The 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.” Powers at *5.

My two cents: remind our insureds to take good care to preserve all evidence that they anticipate could be relevant to a future claim. Often, video surveillance evidence will ultimately be more helpful to us than to plaintiffs! If evidence is lost and spoliation motions are filed, vigorously defend them and know that Georgia courts will most often make the right decision. And finally, what’s good for the goose is good for the gander. I recently filed a motion for sanctions against plaintiffs who had “lost” a video taken just minutes after a catastrophic crash. Suffice it to say that they not only found the video (and abandoned their claim that certain traffic signs were not in place) but are now going to have to defend against my motion for costs and fees.

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