Spoliation after Phillips v. Harmon – Constructive Knowledge of Contemplated Litigation Sufficient to Trigger Duty to Preserve?

Perhaps nothing can be more disheartening than a court finding a defendant responsible for spoliation of evidence. This is because a finding of spoliation gives rise to a rebuttable presumption that the subject evidence was harmful to the spoliator. Thus, even a very innocent error in safeguarding potential evidence can be fatal to an otherwise defensible case.

In the recent decision of Phillips v. Harmon, 774 S.E.2d 596 (Ga. 2015) the Georgia Supreme Court sought to clarify the circumstances that will trigger a party’s duty to preserve. While the Georgia courts have long wrestled with this question and often come to confusing and seemingly contradictory results, the traditional rule is that the duty to preserve is triggered upon a party’s notice of “contemplated or pending litigation.” Silman v. Assoc. Bellemeade, 286 Ga. 27 (2009). Still, questions surrounding exactly what constitutes notice or “contemplated litigation” have been the subject of many legal briefs in courts around the State. The Georgia Supreme Court may have set out to bring clarity to those questions in its Phillips opinion, but in the end it appears to have added a whole new dynamic to the spoliation debate in Georgia.

Phillips involved a medical malpractice claim arising from injury to an infant that was alleged to have been negligently delivered.  The evidence at issue consisted of paper strips generated by a fetal heart rate monitor. Incidentally, the Defendant’s nurses often took notes on these paper strips. Although these strips were not part of the official record or chart, nurses referred back to the notes to complete these records. The defendant customarily retained the strips for 30 days post-delivery before destroying them. The strips generated during the delivery at issue were destroyed in accordance with this procedure.

The plaintiffs argued that the strips contained relevant and critical information.  Further, plaintiffs maintained that the defendants were on notice of contemplated or pending litigation at the time the strips were destroyed. Thus, Plaintiffs requested a jury charge instructing that the notes contained information harmful to defendants. The trial court declined to give the charge, finding the defendants had “no knowledge or notice of potential litigation.” The Georgia Court of Appeals affirmed and the Supreme Court granted certiorari.

Importantly, the Georgia Supreme Court established “the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is evidence not only when litigation is pending but when it is reasonably foreseeable to that party.” The court further stated that “the duty arises when [the alleged spoliator] knows or reasonably should know that the injured party … is in fact contemplating litigation.”

Thus, notice of contemplated or pending litigation can be actual or constructive. In Phillips, The Court set out several factors to consider in determining if constructive notice exists, including the alleged spoliator’s actions; 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 instructed that not only the injured party’s actions relevant in determining whether an adversary had constructive knowledge, but the alleged spoliator’s actions are relevant as well.  While the defendant indisputably did not possess actual notice that litigation was contemplated or pending, the court found “the defendant actually or reasonably should have anticipated litigation.” Therefore, a duty to preserve the evidence existed and, correspondingly, the instruction charging the jury that the evidence would have been unfavorable to the Defendant should have been given.

It is important to recognize that ignorance of potential litigation is not justification for a party’s failure to preserve evidence.  In fact, parties with any potential liability should be mindful of the potential for litigation and preserve evidence accordingly.  After Phillips, it is more important than ever for businesses to cautiously develop and follow evidence retention procedures that reflect sensitivity to spoliation issues.

Douglas R. Kendrick