If you Contemplate, Don’t Spoliate

The Georgia Supreme Court has raised the bar on when a party must preserve evidence. It is clear that the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of evidence. Actual notice from a potential plaintiff clearly makes litigation foreseeable. However, constructive notice may also result in litigation being reasonably foreseeable and create the duty to preserve. When determining constructive notice, the Georgia Supreme Court in Phillips v. Harmon, decided June 29, 2015, held that the duty to preserve evidence must be viewed from the perspective of the party with control of the evidence.

Phillips is a medical malpractice case in which the plaintiffs alleged that various medical providers failed to timely recognize signs of fetal distress resulting in oxygen deprivation to the child before birth. At issue was the duty to preserve fetal monitor strips, which were not part of the official medical record, but had some relevant notes on them that nurses made contemporaneously with the monitoring of the child in utero. After the delivery, the hospital immediately implemented its Sentinel Events policy and procedures – including launching an internal investigation, questioning personnel, notifying its insurance carrier and contacting legal counsel. It did not, however, preserve the fetal monitor strips. At trial, the plaintiff requested a spoliation of evidence charge. The trial court refused and the Court of Appeals affirmed, holding that the defendants had not received actual notice of a claim by the plaintiffs. In reversing, the Georgia Supreme Court held that other circumstances should be considered to determine whether the alleged tortfeasor reasonably should have anticipated litigation – in Phillips, the severe injuries to a newborn child after an unexpected difficult delivery combined with other facts, such as the internal investigation.

In general, those other circumstances include (1) the type and extent of 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; and (5) the frequency with which litigation occurs in similar circumstances. These “other circumstances” suggest that more discovery will be conducted on potential claims to analyze “what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation.”

Many companies have standard procedures in place when an auto accident or slip/fall occurs. The Supreme Court did suggest in a footnote that “merely an injury and subsequent questioning of employees by the manager about what happened does not trigger the duty to preserve,” nor does the duty arise simply because the defendant investigated the incident, because there are many reasons to investigate.

However, given these “other circumstances,” I strongly suspect that the spoliation avenue has been widened a few lanes and that this ruling will result in broader discovery. For example, will plaintiffs now want to know what percentage of slip and fall cases at the retail store result in a claim being made? And, if the answer is 51%, is that a circumstance in which litigation is now “reasonably foreseeable”? Or, if the injury is more serious and exposure is more significant, will that make the litigation reasonably foreseeable? Little guidance is provided. As such, the forecast is for more aggressive efforts to raise spoliation and more litigation over this issue.