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FMG Law Blog Line

Can You Hear (or See) Me Now? No, and that May Constitute Spoliation

Posted on: February 24th, 2016

By: Andy Treese

The Georgia Court of Appeals recently held that a municipality may be subject to sanctions for failure to preserve audio recordings of a police pursuit when the recordings were destroyed in the ordinary course of business before it received ante litem notice or other actual notice of contemplated litigation.

Last year we reported here about Phillips v. Harmon, in which the Supreme Court of Georgia held that the duty to preserve evidence may be triggered by a party’s constructive notice of pending or contemplated litigation.  The ruling marked a significant expansion from the previous rule, which required actual notice (such as a spoliation letter, letter of representation or ante litem notice) to trigger the duty.  We expressed concern that in the wake of Phillips, plaintiffs would begin to seek sanctions for spoliation based upon failure to preserve evidence when a defendant “should have” known a lawsuit was coming, and that defendants with relatively short record retention periods for audio or video recordings would be particularly vulnerable to these claims.   A recent ruling by a full panel of the Georgia Court of Appeals seems to validate those concerns.

In Loehle v. Georgia Department of Public Safety, 334 Ga. App. 836 (2015), plaintiffs filed suit against the Georgia Department of Public Safety and the City of Atlanta after they were injured by suspected carjackers fleeing from police. According to the opinion, Atlanta failed to preserve audio recordings related to the pursuit, destroying them pursuant to its customary retention period after about 120 days, prior to the receipt of ante litem notice.  The trial court held, applying pre-Phillips law, that Atlanta’s failure to preserve the recordings did not constitute spoliation because when the recording were destroyed, the city lacked actual notice that the plaintiffs were contemplating suit.  The Georgia Court of Appeals held, 6-1, that the trial court applied the wrong legal standard, vacated the trial court’s ruling as to spoliation, and remanded for re-consideration under the standard set forth in Phillips.  The sole dissenter, Judge Andrews, would have affirmed the trial court’s ruling because the plaintiffs did not make or preserve “constructive notice” arguments as to the spoliation issue before filing their appeal.

Strategically, the Loehle ruling emphasizes the importance of prompt and thorough investigation of potential claims, even in the absence of a preservation request. Companies with relatively short retention policies (30, 60, or 90 days), particularly regarding audio and video-recordings, may want to re-examine their current policies and consider involving counsel early in pre-suit investigations.

A petition for certiorari has been filed to the Supreme Court of Georgia; we will monitor the case and report on future developments.

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