A recent trend in litigation in Georgia has been defense law firms sending spoliation to Plaintiff’s attorneys to retain vehicles and cell phones involved in accidents. Up until now very few appellate decisions have come down on that particular set of facts. Recent opinions have said that insurance companies and commercial motor carrier defendants that are used to getting sued know that in any decent crash, the driver logs, qualification files and vehicles are likely to be at issue because litigation and claims frequently arise. The appellate courts in Georgia have gone so far as to say that even when the plaintiff’s attorney fails to send a spoliation letter. The whole idea behind this is, you deal with claims all the time, you should know better.
What about a situation where the plaintiff fails to retain key evidence? The court opinion below addressed such a situation and held that an unrepresented plaintiff, although injured, was not sophisticated and even though he asked his wife to retain the tires, this did not make him subject to sanctions. I believe the court would have ruled against the plaintiff had he hired counsel before the car was destroyed.
The state appellate court issued a written opinion in a Georgia product liability case discussing when a plaintiff’s duty to preserve evidence that may be relevant to her case arises. Ultimately, the court concluded that a plaintiff’s duty is triggered at the same time as a defendant’s, which is when the party “actually or should have reasonably anticipated litigation.” Under these facts, the court concluded that the plaintiff had not reasonably anticipated litigation when she allowed for the evidence to be destroyed, and thus it dismissed the defendant’s request for sanctions.
The plaintiff’s husband was involved in a car accident when one of the tires on his Ford Explorer blew out. The plaintiff’s husband was taken to the hospital, where he was unresponsive for several days. After the accident, the car was towed to a storage yard, where it accrued a daily storage fee.
The plaintiff told the storage yard owner that she could not afford the storage fee, and he offered to waive the fees if she signed the car over to him. At around this time, the plaintiff’s husband’s condition had improved, and she asked her husband what to do. He told her to “save the tires.” The plaintiff then signed the car over to the owner of the storage yard and asked that he save the blown tire. Not long after this, the plaintiff’s husband’s condition worsened, and he passed away.
Two years later, the plaintiff filed a personal injury lawsuit against the tire’s manufacturer under a product liability theory. During discovery, the manufacturer asked to inspect the remaining tires on the vehicle, and at this point it learned that they had been destroyed. The manufacturer then asked the court to dismiss the plaintiff’s case based on the plaintiff’s destruction of relevant evidence.
The Court’s Discussion
The court began by noting that parties have a duty to preserve evidence that may be relevant to an upcoming trial. Most often, the court explained, spoliation claims are made against a defendant, in which case the court looks at whether litigation was “anticipated or reasonably should have been anticipated.” If so, the destruction of evidence may result in sanctions.
Here, however, the spoliation claim was made against a plaintiff. The court noted that this presents a different situation in that the plaintiff is the party in charge of initiating litigation. Despite that, the court decided that the same rule should be applied, and it considered whether the plaintiff “actually or reasonably should have anticipated litigation” when the evidence was destroyed.
The court concluded that the plaintiff did not actually contemplate litigation, and the facts were such that the court could not say that she should have reasonably anticipated litigation. The court acknowledged that the analysis can be tricky and certainly depends on the facts of each case. However, here, the court strongly considered the fact that the plaintiff was not sophisticated in the ways of litigation, and, although her husband asked that she save the tires, there was no other evidence indicating that she should have anticipated filing a lawsuit. Thus, when she allowed the storage yard to destroy the tires, she was not acting with the intent to conceal evidence.
Have You Been Injured in a Georgia Car Accident?
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