When we at Cheeley Law Group meet with new clients, one of the first conversations we have with our clients relates to their obligation to preserve evidence that may be potentially relevant to their claims. We have this conversation because Georgia law imposes a duty on parties to preserve evidence which may become necessary to a pending—or even contemplated—lawsuit. “Spoliation” is the legal term that refers to a party’s failure to preserve this evidence.
Until recently, Georgia law was somewhat ambiguous as to a plaintiff’s obligation to preserve evidence as compared to a defendant’s obligation. However, the Supreme Court of Georgia recently addressed this ambiguity in Cooper Tire & Rubber Company v. Koch, 303 Ga. 336, 336 (March 18, 2018) and held that plaintiffs and defendants have the same duty with regard to preserving evidence and that the duty to preserve evidence for either party “arises when that party actually anticipates or reasonably should anticipate litigation.”
In Cooper Tire, the plaintiff was the wife of a motorist involved in a single vehicle accident following a tire blowout on I-16. Id. at 336. The motorist suffered serious injuries and lived for several weeks after the accident; however, he ultimately died having never left the hospital’s intensive care unit. Id. Immediately after the accident, the relevant vehicle was placed in a storage yard. Id. at 337. At some point after the accident, but before her husband died, the storage yard owner told the plaintiff that she was being charged a daily storage fee. Id. When the plaintiff told the storage yard owner that she could not afford the daily storage fee, he offered to waive the storage costs if the plaintiff would transfer the title of the vehicle to him so that he could sell the vehicle to a salvage yard. Id. The plaintiff discussed the issue with her husband, who advised her either to “save the tires” or “save the tire.” Id. The plaintiff instructed the storage yard to preserve the blown-out tire (which was done), but she relinquished control of the vehicle and the other three tires. Id. The storage yard owner then scrapped the vehicle and remaining tires. Id.
Several weeks or months after the vehicle and tires had been destroyed, the plaintiff sued the tire manufacturer, Cooper Tire & Rubber Co. Id. Cooper Tire filed a motion to dismiss the complaint or impose other sanctions for spoliation. Id. at 338. The trial court denied Cooper Tire’s motion, holding that “[v]iewing the evidence from the perspective of the party having control over the subject vehicle, this Court does not find that the facts and circumstances give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.” Id.
The defendant appealed the trial court’s order, and the Georgia Court of Appeals affirmed. The defendant then petitioned the Supreme Court of Georgia for a writ of certiorari. The court took the case in order to clarify Georgia law on spoliation. Prior to Cooper Tire, the seminal spoliation case in Georgia was Phillips v. Harmon, 297 Ga. 386 (2015). The Cooper Tire court acknowledged that, following Phillips, “there [was] uncertainty in the bench and bar about whether the same duty to preserve relevant evidence applies to plaintiffs as well as defendants[.]” Cooper Tire, 303 Ga. at 340. The Georgia Supreme Court seized the opportunity in Cooper Tire to resolve the uncertainty, noting: “so let us now eliminate any doubt: the duty [to preserve evidence] is defined the same for plaintiffs and defendants, regardless of whether the party is an individual, corporation, government, or other entity.” Id.
The court acknowledged, however, that “the practical application of that duty in particular cases may depend on whether the party is the plaintiff or the defendant as well as the circumstances of the party and the case; consequently, the duty often will not arise at the same moment for the plaintiff and the defendant, because of their differing circumstances.” Id. In Phillips, the court held that the defendant’s duty to preserve evidence arose when the accused spoliator had actual or constructive knowledge that litigation was being contemplated. Phillips, 297 Ga. at 396-398. In determining that the defendant in Phillips (a hospital) “actually or reasonably should have anticipated litigation,” the court set forth a non-exclusive list of factors for consideration:
. . . 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.
Phillips, 297 Ga. at 397.
The Cooper Tire court acknowledged that while those same subjective Phillips factors could be used in evaluating whether a plaintiff actually or reasonably should anticipate litigation, the practical reality is that, “because the plaintiff generally controls whether and when litigation will be pursued, spoliation claims involving a plaintiff’s duty to preserve will more frequently and easily be resolved based on actual knowledge of litigation than will claims aimed at defendants.” Cooper Tire, 303 Ga. at 341.
Even though the Cooper Tire court noted that plaintiffs and defendants are obligated “to act reasonably” with regard to the preservation of evidence, the reasonableness evaluation is largely affected by the party’s “experience and sophistication in matters of litigation.” Id. at 342. “For example, as compared to an individual who never before has been seriously injured or involved in litigation, a corporate defendant that routinely faces litigation over the same type of incident that resulted in the same type of injury that the plaintiff suffered might well be found to reasonably have greater understanding of certain circumstances that would put the party on notice that litigation should be anticipated[.]” Id.
The Cooper Tire court concluded that given the facts and circumstances of that particular case, it was “easy to determine that Plaintiff did not actually contemplated litigation at the time the evidence at issue was destroyed[.]” Id. at 344 (emphasis in the original). However, the question of whether the plaintiff “reasonably should have anticipated litigation” was “closer.” Id. The court acknowledged that her husband’s statements that the accident occurred because “the tire blew” and that she should “save the tire” or “tires” could “heighten the reasonableness of anticipating litigation if made by or to a tire manufacturer accustomed to product liability litigation . . . .” Id. (emphasis supplied). However, those statements would not necessarily result in heightening the reasonableness by which a party should anticipate litigation when that party has “no apparent previous experience with litigation.” Id.
The Cooper Tire court also acknowledged that the plaintiff “had legitimate reasons not to preserve the vehicle and the other tires[.]” Id. at 345. The reasons included: the vehicle was totaled; the plaintiff had no collision insurance on the vehicle; the plaintiff could not afford the storage costs; and the plaintiff’s focus at the time was her husband’s well-being in the hospital. Id.
In addition to its holding clarifying a plaintiff’s duty to preserve evidence, the Cooper Tire court also made several significant statements in dictum. First, the court emphasized that “the most severe sanctions for spoliation are reserved for ‘exceptional cases,’ generally only those in which the party lost or destroyed material evidence intentionally in bad faith and thereby prejudiced the opposing party in an uncurable way.” Id. at 343 citing Phillips, 297 Ga. at 398-99. According to the Cooper Tire court, “[t]he loss of relevant evidence due to mere negligence—including negligence in determining when the duty to preserve evidence arose—normally should result in lesser sanctions, if any at all.” Cooper Tire, 303 Ga. at 343 (internal citations omitted; emphasis supplied).
Second, the Cooper Tire court reiterated that in evaluating whether the party moving for a spoliation sanction has been prejudiced, a court should also consider whether the loss of evidence would also prejudice the party bearing the responsibility to preserve the evidence. Id. at 346. “Indeed, the fact that lost evidence is often equally or even more important to the case of the party that controlled it is why fact-finders should not readily presume that lost evidence was favorable to the opposing party absent a showing that the evidence was lost intentionally to deprive the other party of its use in litigation.” Id. at 346-47. In further cautioning against perfunctory imposition of spoliation sanctions, the court endorsed the concept that the absence of a spoliation sanction does not prevent a party from presenting as part of its case the circumstances under which certain evidence was saved while other evidence was destroyed. Id. at 347.
If you believe you may have a potential claim and have questions about your obligations to preserve evidence relevant to that claim, contact us at 770-814-7001.