In a car accident case where no one agrees who caused the crash, one key piece of evidence is the “black box” in the car that can contain, speed, braking and steering data. In a new appellate decision, the issue of when the duty to preserve the data and who is responsible to do so was discussed.
The case of French v. Perez, 824 S.E.2d 796 (Ga. App., 2019) addressed a case where French was hurt when the car he was in was hit by Perez’s vehicle. The car was signed over to State Farm by Perez when it was totaled and French’s lawyer sent a letter to State Farm insisting they preserve the car and its black box. One month later the car was destroyed in the crusher.
French ask the Judge to sanction Perez for failing to preserve the evidence in the case, and the Court refused to do so, ultimately leading the case to the Court of Appeals. The Court had to decide; 1) was the letter to State Farm notice to Perez and 2)could Perez do anything about it since they turned it over to State Farm by the time the letter went out.
The Court noted “First, “contemplation of potential liability is not notice of potential litigation.” Kitchens v. Brusman , 303 Ga. App. 703, 707 (2010). Thus “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.” Id. French v. Perez, 824 S.E.2d 796 (Ga. App., 2019)
The Court then analyzed whether State Farm allowing the car to be destroyed was spoliation of evidence by Perez. The Court noted “In other words, sanctions are not warranted unless the third party “acted as the litigant’s agent in destroying or failing to preserve the evidence.” Bouve & Mohr , 274 Ga. App. at 762 (1), 618 S.E.2d 650. An agency relationship exists “wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” OCGA § 10-6-1. And, “[an] agent shall act within the authority granted to him, reasonably interpreted.” OCGA § 10-6-21. French v. Perez, 824 S.E.2d 796 (Ga. App., 2019)
Under the classic agency analysis, the Court determined that State Farm destroyed the car for its own purposes and were in no way the agent of Perez. Therefore it cannot be said that Perez destroyed the evidence.
Had the Court held that State Farm was Perez’s agent when they destroyed the car, the Court then would have applied the traditional test for spoliation to determine the appropriate sanctions. The tests for sanctions are:
(1) whether the spoilee was prejudiced as a result of the destruction of the evidence
(2) whether the prejudice can be cured
(3) the practical importance of the evidence
(4) whether the spoilor acted in good or bad faith and
(5) the potential for abuse if expert testimony about the evidence is not excluded.”
R. A. Siegel Co. 246 Ga. App. at 180.
While a number of recent court decisions have said that the duty to preserve can be triggered even without a spoliation letter, there still must be the high likelihood of harm flowing from the failure to preserve the evidence and no other way of finding it. Court’s are pretty loathe to grant sanctions so strict that they can affect the outcome of the trial without clear evidence of foul play.