Georgia courts have finally claimed the same legal standard applies to plaintiffs and defendants when courts are deciding when the duty to preserve relevant evidence arises.  But the application of the standard to plaintiffs and defendants will likely differ.

Spoliation; a term that strikes fear in the heart of every defense counsel who regularly handles product liability litigation. Spoliation motions are usually filed by plaintiffs who contend the defendant should be sanctioned for destroying or failing to preserve relevant evidence.  If a court finds a party engaged in spoliation of evidence, the sanction can be as severe as striking an answer or an instruction to the jury to presume rebuttably that the evidence was adverse to the spoliating party’s claim or defense.  Sophisticated companies, well versed in litigation, are well aware of the duty to preserve evidence and the negative implications for failing to comply, but when does the injured party’s duty to preserve evidence arise?  Until recently, this was unclear in Georgia.

In Cooper Tire & Rubber Co. v. Koch, 812 S.E.2d 256 (2018), on a petition for certiorari, the Georgia Supreme Court addressed, for the first time, when a plaintiff’s duty to preserve evidence begins.  The spoliation issue arose out of a product liability action filed by the wife of a decedent who died several weeks after he was involved in a single-vehicle crash allegedly caused by the tread separation of his left rear tire.  Id. at 263-4.  While the decedent was in the hospital, he told his wife to “save the tires” or “save the tire,” so she saved the allegedly defective tire but allowed the three companion tires and vehicle to be destroyed because she could not afford the storage costs.  Id. at 264.

After the lawsuit was filed, the defendant argued the trial court should apply the objective spoliation standard previously set forth by the Georgia Supreme Court in Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015), and dismiss the case or impose other sanctions on the plaintiff for destroying relevant evidence.  The Phillips court, however, only addressed a defendant’s duty to preserve relevant evidence in his or her control, finding the duty arises when litigation is actually or reasonably should be anticipated by the defendant.  Id.  The Court set forth some factors to consider when deciding whether the defendant reasonably should have anticipated litigation which included: 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. Id. at 397, 774 S.E.2d 596. In sum, the Phillips court applied a reasonable person standard to defendants, whether a reasonable person in the same circumstances as the defendant would have actually or reasonably anticipated litigation.

In Cooper Tire & Rubber Co., the Georgia Supreme Court affirmed the lower court’s application of the legal standard set forth in Phillips, plainly stating the duty is defined the same for plaintiffs and defendants but pointed out the practical application of the duty may differ.  812 S.E.2d at 261.  For example, because the plaintiff generally controls whether and when litigation will be pursued, spoliation claims involving a plaintiff’s duty will more frequently be resolved based on actual knowledge of litigation.  The Court also indicated it may be appropriate for courts to consider some of the factors set forth in Phillips when deciding when the plaintiff’s duty arose but made abundantly clear the list was not exclusive.  Id. at 262.  In essence, absent solid evidence, it will be difficult to prove the plaintiff contemplated litigation before actually deciding to pursue litigation.

The Cooper Tire & Rubber Co. court ultimately affirmed the lower court’s ruling that the plaintiff did not yet have a duty to preserve evidence at the time the relevant evidence was destroyed, but the Court focused on the applicable standard of review.  Since the defendant filed a motion to dismiss based on spoliation without requesting an evidentiary hearing and the lower court considered matters outside of the pleadings, the Court had to apply a summary judgment standard and view the evidence in the light most favorable to the plaintiff.  Id. at 263-64.  Under this standard, the Court easily found the plaintiff did not actually or reasonably contemplate litigation at the time the evidence was destroyed because the plaintiff had no previous experience with litigation, the plaintiff had not investigated the crash, and counsel had not been notified.  Id.  Based on the Court’s remarks, careful consideration should be given to whether it is more advantageous to request an evidentiary hearing, which would allow the trial court to consider the credibility of the evidence rather than considering the evidence in the light most favorable to the plaintiff.

Finally, although the Court ultimately found there was no spoliation, the Court made clear the defendant was not foreclosed from presenting, as part of its defense, the circumstances regarding the destruction of the evidence or from renewing the motion if additional evidence emerged regarding the circumstances under which the evidence was destroyed.  Id. at 266.

Following Cooper Tire & Rubber Co., it is important to remember before filing a spoliation motion in Georgia, the most severe sanctions for spoliation are only imposed in exceptional cases where there has been bad faith and the other party has been prejudiced in an incurable way.  Mere negligence in determining when the duty arose normally results in a lesser sanction.  Id. at 263.  Defendants should consider whether the plaintiff has previous experience in litigation, investigated the crash before the evidence was destroyed, or consulted with counsel.  If these factors weigh in the defendant’s favor, then a spoliation motion may be worthwhile.