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By: Wayne S. Melnick
One of the largest areas of developing Georgia law in recent years is regarding spoliation of evidence and under what circumstances a court can and should sanction a party for allowing spoliation to occur. Generally, spoliation refers to any party’s destruction or alteration of evidence. Contrary to popular belief, sanctions based on spoliation of evidence are not available only to plaintiffs in a case, but are available to either party. While we, as defense attorneys, often see spoliation being used as a weapon against the defense, often times, the plaintiff is the party in the best position to preserve evidence. As a result, a plaintiff’s failure to do so can be used against him/her. When seeking sanctions against a plaintiff alleged to have spoliated evidence, a trial court will apply the same standards that are used to determine whether sanctions are appropriate when a defendant is alleged to have destroyed or altered evidence.
Although spoliation sanctions being applied to a plaintiff is rare in Georgia, it does happen. Recently, the Georgia Court of Appeals affirmed the appeal of a defense verdict after the trial court found both that the plaintiff was responsible for the spoliation of evidence and also sanctioned the plaintiff with adverse instructions to the jury. In Lee v. CNH America, LLC, 2013 WL 3388737 (Ga. Ct. of App. Case. No. A13A0696, decided July 9, 2013), the plaintiff found her husband trapped in a farm tractor three days after purchasing it new. The case focused on a “height lift adjustment knob” that allowed part of the tractor at-issue to be instantly raised to its full height if the knob was loosened during operation. Less than two months after the accident, but before the lawsuit was filed, defense counsel requested to inspect the tractor. The inspection request was refused and the defense was not allowed to inspect the tractor until over two years later and four months after the widow filed her wrongful death law suit. In the intervening period, the tractor was inspected by two consultants retained by the plaintiff and her son operated the tractor during the inspections. Seven months before the defense was allowed to inspect the tractor, it was moved to an engineering firm in Florida and stored in unknown conditions and then one month before the defense inspection, it was again moved to a wrecker service in Alabama and stored in an enclosed building “that may not have had climate control.”
When the defense finally was allowed to inspect the tractor, the critical knob was rusted and stuck in place. As a result, the knob could no longer be moved as it could when the tractor was sold as new.
Although the trial court denied a defense motion for summary judgment based on spoliation, the court did find that plaintiff had spoliated evidence and that sanctions were appropriate. In determining that all factors to be considered pursuant to Georgia law for spoliation weighed in favor of applying sanctions against the plaintiff, the court charged the jury that a presumption arose against the party (plaintiff) who failed to preserve evidence necessary to contemplated or pending litigation. In rejecting plaintiff’s argument that the sanction was inappropriate because she did not act in bad faith, the Court of Appeals affirmed that bad faith was not required to apply sanctions.
This case is a reminder that what is sauce for the goose is also sauce for the gander, and defense counsel should not hesitate to seek sanctions against a plaintiff when it was plaintiff that allowed for the destruction of evidence that is necessary to the defense of the case.