Now You See It, Now You Don't: a Georgia Perspective on Spoliation of Evidence

• Publication year: 2010

Now You See It, Now You Don't: A Georgia Perspective on Spoliation of Evidence

Brooks Morel

Introduction

Many lawyers find that evidence they need to establish their prima facie case, or defense to a case, has been lost or destroyed.[1] This evidence may have been intentionally lost or destroyed, or negligently lost or destroyed; however, the reality of the situation is the same—the evidence is gone.[2] Consider Lane v. Montgomery Elevator Co.,[3] a 1997 Georgia Court of Appeals case in which the plaintiff suffered injuries on an elevator at Charter Northside Hospital.[4] As she arrived at the ground floor of the hospital, the plaintiff did not observe that the elevator had actually stopped several inches above the designated floor.[5] Unaware of the dropoff, the plaintiff exited the elevator, sustaining back and leg injuries when she fell forward from the elevator.[6] She sued the Montgomery Elevator Company ("Montgomery"), alleging that they negligently installed, operated, and maintained the elevator at issue.[7] The trial court entered summary judgment for the defendant, and the plaintiff appealed.[8]

Georgia law requires that "[a]ny elevator . . . involved in an accident . . . shall be removed from service at the time of the accident. The equipment shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority."[9] If Montgomery violated Georgia Code section 8-2-106(c), such conduct would be a form of spoliation of evidence because the evidence (the elevator) would have been altered, tampered with, or destroyed.[10] Under Georgia law, spoliation of evidence "creates the presumption that the evidence would have been harmful to the spoliator," and

therefore a rebuttable presumption against Montgomery would be raised, "rendering summary judgment inappropriate."[11]

Montgomery's records were inconsistent as to whether the elevator that the plaintiff was on when the accident occurred was the elevator that was also repaired on the same day for a blown fuse, or if the blown fuse occurred on another elevator.[12] Additionally, Montgomery's service records indicate that several days after the accident but before the state inspection, one of Montgomery's mechanics performed routine maintenance on the hospital's elevators, including the elevator at issue.[13] The mechanic admitted that routine maintenance includes "greasing, oiling, inspecting motor brushes, generator brushes, contacts on relays and fixing whatever needed repair."[14]

The court of appeals reversed the state court's ruling of summary judgment for the defendant, finding the conflict in the evidence "troublesome" and not dispositive for summary judgment purposes.[15] The court stated that "[i]f Georgia law permitted repairs and maintenance to be performed prior to the time of the state inspection, plaintiffs would never be able to show what malfunctioned and caused their injuries."[16] The court held that inconsistent records raised issues regarding whether Montgomery violated the statute and whether the state actually inspected the elevator in question.[17] Material issues of fact remained unresolved and were questions to be determined by the jury.[18]

What exactly is "spoliation"? By definition, spoliation is "[t]he destruction, or the significant and meaningful alteration of a document or instrument."[19] Spoliation can be intentional or unintentional, and spoliation can be by a party or by a non-party to a lawsuit.[20] Spoliation can have a minimal effect on the outcome of a lawsuit; it can be an unintentional act of destruction or alteration, which does not affect the outcome of the trial.[21] Conversely, spoliation can have a dramatic effect on the outcome of a lawsuit; it may be an intentional act or alteration of evidence upon which the entire case may hinge.[22] Essential evidence is paramount for a factfinder to make an informed decision in a courtroom.[23] Without essential evidence, the factfinder lacks the requisite information necessary to reach a conclusion.[24] Because the American judicial system is designed to achieve justice, courts strive to ensure that factfinders receive "relevant and trustworthy evidence" at trial.[25] Consequently, spoliation, whether negligent or intentional, threatens "the integrity of our judicial system."[26] Not only may the outcome of a lawsuit be changed dramatically by spoliation of evidence, lawyers are also presented with significant obstacles when trying to counsel clients effectively.[27]

Traditionally, courts have developed four remedies for spoliation of evidence: (1) adverse inference, i.e., that the destroyed evidence would have been adverse to the party committing the spoliation; (2) court-imposed civil sanctions under discovery statutes; (3) criminal sanctions for obstruction of justice; and (4) attorney discipline.[28] However, as pointed out by recent commentators, these traditional remedies often do not adequately punish the spoliator, deter future spoliation conduct, or put the aggrieved party in the position he would have enjoyed had the spoliation never happened.[29] Furthermore, different courts take different and inconsistent approaches when addressing spoliation conduct.[30] For example, whereas one court may view intentional destruction of evidence as warranting a more severe penalty than unintentional destruction of evidence, another court may make no distinction between a purposeful and nonpurposeful act of spoliation, imposing like penalties and remedies for unlike conduct.[31]

Several states have responded to criticisms that traditional remedies are inadequate "by recognizing a separate tort action for negligent or intentional spoliation of evidence."[32] Other states have held the doctrine of evidence spoliation to constitute a substantive rule of law, or a procedural evidentiary rule.[33] Still, the vast majority of states have chosen none of the above methods for addressing spoliation.[34]

Part I of this Note examines remedies currently available in Georgia to address spoliation. Part II analyzes the traditional spoliation remedies available to the party aggrieved by spoliation. Part III reviews the strengths and weaknesses of the emerging tort of evidence spoliation, followed in Part IV by an outline of the suggested new federal rule of evidence. Finally, Part V suggests a proposal for addressing issues of spoliation in Georgia.

I. Georgia Law Regarding Spoliation

Georgia courts historically have relied upon a rebuttable presumption to remedy spoliation by a party.[35] This remedy derives from Georgia Code section 24-4-22 which states:

If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.[36]

Georgia courts often conclude that such a rebuttable presumption often is insufficient to cure the prejudice resulting from spoliation.[37] In Sharpnack v. Hoffinger Industries, the Georgia Court of Appeals recently suggested that it take a "fresh look" at recognizing a tort of spoliation once an appropriate case presents itself.[38] It is unclear, however, what scenario the Court deems appropriate to take such a "fresh look." Faced with an analogous fact pattern to Sharpnack in Owens v. American Refuse Systems, Inc.,[39] the Georgia Court of Appeals again expressly denied recognizing a spoliation tort.[40]

In Chapman v. Auto Owners Insurance Co.,[41] the Court of Appeals of Georgia specifically addressed whether a rebuttable presumption that spoliated evidence would be adverse to the party who destroyed it was an adequate remedy to the aggrieved party.[42] A fire broke out in Buckle's hardware store in January of 1992 where Chapman Electrical employees had been working.[43] Auto Owners, Buckle's property insurer, paid more than $300,000 for the store's losses and hired Applied Technical Services ("ATS") to investigate the cause of the fire.[44] An ATS technician removed electrical equipment from the hardware store and gave it to another ATS employee for testing.[45] Chapman's liability insurer, American Liberty, requested that ATS permit it to inspect the equipment.[46] American Liberty claimed it received no response from ATS.[47] ATS claimed that it offered American Liberty access to the electrical equipment, "contingent upon interviewing Chapman's employees."[48] In March of 1992, ATS determined that the fire was caused by the negligence of a Chapman employee who cut into a live wire and ignited the surrounding area.[49] Auto Owners, as subrogee of the store owner, sued Chapman in tort for the fire damage.[50] ATS ordered destruction of the electrical equipment ten days after the suit was filed.[51] Chapman moved the trial court either to dismiss the lawsuit or to preclude Auto Owner's experts from testifying regarding the destroyed evidence by virtue of the intentional destruction of the evidence by the plaintiff's experts.[52] Instead, the trial court gave a jury charge based upon Code section 24-4-22, to the effect that the spoliation gives rise to a rebuttable presumption against the spoliator.[53]

Chapman filed a petition for interlocutory appeal, contending that a rebuttable presumption is inadequate to correct party prejudice.[54] The Georgia Court of Appeals granted Chapman's petition "to determine an issue of first impression" in Georgia: "whether the trial court's only means to address the destruction of evidence was to charge the jury that spoliation of evidence raises a rebuttable presumption against the spoliator."[55]

To determine whether such a presumption is insufficient and whether testimony should be excluded, the court of appeals considered the following five-factor test...