• Litigation Pitfalls: Failure to Preserve Evidence in Your “Control.”
  • January 16, 2015 | Author: Lisa Richardson
  • Law Firm: Drew Eckl & Farnham, LLP - Atlanta Office
  • Spoliation of evidence is the destruction or failure to preserve evidence within the possession, custody or control of a party after that party anticipates litigation. A charge of spoliation is serious because it can lead to sanctions.

    To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to craft a solution that fits the facts. The court may charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator. More concerning, the trial court may exclude testimony that pertains to the missing evidence. Even more severe is the sanction of dismissal of the case. Although it is a sanction reserved for the most egregious circumstances, it is nonetheless a possible consequence of a failure to preserve evidence. Thus, the issue of spoliation of evidence can have a dramatic impact on the outcome of a litigation.

    We have seen a trend in the last several years of use of spoliation sanctions as a means of shoring up what may otherwise be a weak case. Plaintiff’s attorneys are more frequently sending “preservation letters” - a notice to a potential defendant to preserve any and all evidence in its possession, custody or control - and then use the discovery process to build a case, at least in part, around the defendant’s failure to preserve some relevant piece of evidence.

    In most cases, the evidence to be preserved will be in the possession or custody of the potential defendant. However, the often overlooked element is control. There may be relevant evidence that is not in the possession of a defendant, but is within the right of the defendant to obtain and preserve. This presents a pitfall for the unwary.

    In Kitchens v. Brusman, 303 Ga. App. 703, 708 (2010) the Georgia Court of Appeals reversed the denial of a motion for sanctions against Dr. Brusman, holding that “the doctrine of spoliation can be applied against a party for the destruction of evidence by a second party where the second party was acting as an agent for the first party.” Dr. Brusman, a pathologist, was sued for medical malpractice in his analysis of breast tissue samples for the plaintiff’s deceased wife, who was later diagnosed with and died from breast cancer. Id. At issue on appeal was sanctions for the failure to preserve tissue samples. The tissue samples were maintained by a hospital. Dr. Brusman was employed in a private practice that was a wholly separate entity from the hospital. However, Dr. Brusman had access to the samples and had the authority to preserve them if needed.

    Dr. Brusman argued that he should not have spoliation sanctions against him or his practice group because the hospital (a separate entity) was responsible for maintaining the tissue samples. The Court of Appeals rejected this excuse:

    Dr. Brusman also argues that hospital employees were responsible for storage and disposal of the tissue blocks. But the doctrine of spoliation can be applied against a party for the destruction of evidence by a second party where the second party was acting as an agent for the first party. And there is evidence that hospital employees could be seen as agents of [Dr. Brusman] for the purposes of ensuring compliance with the five-year retention policy. We need not decide that issue, however, because we have already found that the evidence turned up missing almost three months after the defendants should have been aware of contemplated litigation and that the pathologists had access to and could have preserved tissue specimens at any time.

    Kitchens, at 708-709 (citations omitted). In other words, once Dr. Brusman anticipated litigation, he was under a legal obligation to preserve the relevant tissue samples, which were not in his possession but were within his control.

    Under Kitchens, it is important to assess early in any claim what evidence exists, who has possession of it, and who is legally able to access and preserve it. It is not enough to simply look at the evidence in the physical possession of a party. A potential defendant must consider other sources of evidence and whether it has a right to access and preserve that evidence. While the scope of Kitchens has not yet been explored by the Georgia appellate courts, its holding may be extended to unprecedented lengths. If a car owner fails to obtain service records from a third-party mechanic that are relevant to the lawsuit and those records are later destroyed by the mechanic, is that spoliation? If a mall owner fails to preserve cleaning logs created and maintained by its cleaning contractor, is that spoliation? The Kitchens decision would appear to indicate so; raising the bar for pre-suit efforts to gather and preserve of relevant evidence.