SPOLIATION / DESTRUCTION OF EVIDENCE IN TRUCKING CASES:  RIGHTS & REMEDIES UNDER GEORGIA LAW

 
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By:  John A. Houghton

I.            Definition Of Spoliation Of Evidence

Many Plaintiff practitioners are hesitant to file their case in federal court, given all of the rules, planning conferences, and formality required by the district court.  Often, the Plaintiff's lawyer is even more gun shy when it comes to pursuing state remedies like spoliation within a federal diversity case.  However, sanctions for destruction of evidence are equally recoverable from district court as they are from state court in Georgia.

Federal law governs the sanctions for spoliation of evidence, and the district court has broad discretion under its inherent powers to fashion an appropriate remedy for the destruction of evidence. Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005).  Despite the fact that federal law applies to this issue, the district court should look to state law for guidance in determining what sanction to apply. Id. at 944. Spoliation refers to “the destruction or failure to preserve evidence necessary for contemplated or pending litigation.”  Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767 (2002).  See also Baxley v. Hakiel Industries, Inc., 282 Ga. 312 (2007); Chapman v. Auto Owners Insurance Co., 220 Ga. App. 539 (1996).  

a.     Duty to Preserve Under Georgia Law

The Georgia Supreme Court’s 2015 holding in Phillips v. Harmon, 297 Ga. 386 (2015) has altered the duties of evidence preservation for litigants.   Prior to Phillips, a defendant’s duty to preserve evidence arose when it had actual notice of pending injury claims from the claimant or his attorney.   Under Phillips, the Supreme Court held that a defendant’s duty to preserve evidence arises when it has actual or constructive notice of potential litigation. Id. at 396.

The Court held that “the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence” and “the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of ‘notice’ to the defendant.” Phillips v. Harmon, 297 Ga. 386, 396 (2015).  And, “the defendant’s actions,” among other factors, “may be relevant” in determining whether the defendant had constructive notice of contemplated litigation.  Id. at 397. 

The Supreme Court in Phillips listed a series of circumstances that would put a defendant on notice that the plaintiff is contemplating litigation:

The type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances. Id.  And, the court concluded:

[I]t may be appropriate to consider, in determining whether the defendant actually did or reasonably should have foreseen litigation by the plaintiff, not only what the plaintiff did or did not do after the injury and before the evidence in question was lost or destroyed, but also what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation. Id.

[1] The term “spoliation” is used to refer to “the destruction or failure to preserve evidence” that is relevant to “contemplated or pending litigation.” Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (2009).  However, in order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue. Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807(6) (2013).

b.     Duty to Preserve Under Federal Regulation

The duty to retain both the driver’s logs and post-collision testing is also imposed by federal regulation.  Federal law governs when and for how long a tractor-trailer driver may drive a tractor-trailer and requires a driver to keep records of the hours he has driven.  These regulations are known as the hours-of-service regulations and are contained in 49 C.F.R. § 395. 

A tractor-trailer driver may drive a maximum of 11 hours in any 14 hour period.  After driving 11 hours, the driver must be off-duty for 10 hours before driving again.  Further, a tractor-trailer driver may not drive after being on-duty 60 hours in any seven day period or after being on-duty 70 hours in any eight day period.  49 C.F.R. § 395.3(a)(2) and (3).  To ensure that tractor-trailer drivers are complying with the regulations, tractor-trailer companies must require their drivers to record whether they are driving, on-duty or off-duty at all times during each 24 hour period. 49 C.F.R. § 395.8.

II.           Factors The Court Considers In Deciding Whether To Impose Sanctions

Under Georgia law, spoliation of relevant evidence warrants the imposition of sanctions including in order of degree:  (1) entry of judgment in favor of the plaintiff, (2) exclusion of evidence or disallowing a party to contest a certain fact or (3) a jury instruction that the spoliation of evidence raises a presumption against the spoliator. Bridgestone/Firestone North American Tire, LLC v. Campbell, 258 Ga. App. 767, 574 S.E.2d 923 (2002)

In Amli Residential Properties, Inc. v. Georgia Power Co., the Court of Appeals held that:

The trial court should weigh five factors before exercising its discretion to impose sanctions: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Amli Residential Properties, Inc. v. Georgia Power Co., 293 Ga. App. 358, 361 (2008) see also Chapman v. Auto Owners Insurance Co., 220 Ga. App. 539, 469 S.E.2d 783 (1996).

III.            Types of Sanctions

Generally, the most severe sanction is the Court striking pleadings, such as the Answer of the Defendant.  The Court can also make factual findings and allow specific claims such as punitive damages to automatically proceed to the jury for their consideration.  Wal-Mart Stores, Inc. v. Lee, 290 Ga. App. 541, 659 S.E.2d 905 (2008)

Spoliation issues often arise before trial, and sanctions for spoliation may include the removal of certain evidence and issues from the jury's consideration.  The trial court-not the jury-determines what evidence the jury may hear and which issues it must resolve. Therefore, the court did not exceed its authority in this case by making factual findings necessary to determine whether to impose sanctions for spoliation.  Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005)

The destruction of federally-required records of this driver’s impairment (such as driver's logs and post-collision toxicology testing) prevents the Plaintiff from presenting clear and convincing evidence of the punitive conduct of these Defendants at trial.  When there is evidence that a driver was impaired by alcohol or drugs in causing a wreck, the issue of punitive damages is always for the jury to decide. See Craig v. Holsey, 264 Ga. App. 344 (2003) see also Langlois v. Wolford, 246 Ga. App. 209 (2000).  Likewise, the destruction of driver’s logs or other pertinent evidence required to be maintained under the Federal Motor Carrier Safety Regulations is an appropriate basis for punitive damages. See JB Hunt v. Bentley, 207 Ga. App. 250, 256-257 (1993).

Based on the facts and egregiousness of each case, the diligent practitioner should review all evidence required to be maintained under the FMCSR, and determine what has not been preserved.  Depending on the context and importance of the missing evidence to the claims and defenses in the case, the Court should fashion an appropriate sanction against the offending party.