Avoiding Spoliation Sanctions in a Digital World
By: Brendan Thompson
It is no secret we have become increasingly dependent on technology in nearly every aspect of life. Whether by design or by accident, modern devices often produce recorded data which could be used as litigation evidence. With these changes, potential litigants must be vigilant to avoid destruction or “spoliation” of data that could be relevant in subsequent litigation.
Georgia defines spoliation as the destruction or significant alteration of evidence, or the failure to preserve evidence in litigation that is pending or reasonably foreseeable. Phillips v. Harmon, 297 Ga. 386, 396 (2015). If a trial court finds a party destroyed or otherwise allowed the alteration of evidence, the “spoliating” party may be subject to case-altering sanctions. The most common sanction for spoliation is an instruction that the jury may presume the destroyed/altered evidence would have favored the spoliator’s opponent. However, courts may impose sanctions as severe as the striking of specific defenses, the exclusion of witnesses or other evidence, the entry of a default judgment or the dismissal of the case.
Georgia courts have long wrestled with the timing of when a litigant’s duty to preserve evidence is triggered. Generally, the duty arises when litigation is “contemplated or pending.” Whether litigation is contemplated is determined from the perspective of the party involved. For potential defendants, the duty to preserve arises when it is known or reasonably should be known that the injured party has contemplated litigation. Because a defendant’s duty can be triggered by implied or constructive notice, disputes often arise when an injured party has not expressly demonstrated their intent to pursue litigation. As such, early preservation of evidence, even when a claim is not yet asserted, should be the standard.
While the timing of evidence preservation has not changed significantly in recent years, the proliferation of new technology has increased the ways in which data can be recorded, and, by extension, the types of evidence potential litigants must take care to preserve. As potential defendants adopt new technology, spoliation issues can arise where those entities or individuals have not adopted proper methods for retrieving the data that was created. In Cowan Sys., LLC v. Collier, 361 Ga. App. 823 (2021), the Georgia Court of Appeals affirmed a trial court’s finding that spoliation occurred where the defendant trucking company had installed an electronic data recording system on its vehicles but had not established a process for downloading and saving the system’s electronic reports, and, thus, failed to preserve the reports. Id. at 620, 623. It was undisputed on appeal that the defendant’s failure to preserve the reports was unintentional. Id. at 622. While the appellate court concluded the trial court abused its discretion in fashioning a sanction that was too severe for an unintentional failure to preserve data, it still upheld the lower court’s initial determination that some spoliation sanction was warranted. Id.
Spoliation issues can also arise where digital evidence is preserved in a way that alters the data. For example, many businesses utilize surveillance cameras with operating systems that record and save a pre-set amount of data which is later overwritten if not manually preserved. A Georgia state trial court recently granted a spoliation motion where surveillance footage was preserved by recording a snippet of the footage on a cell phone camera, resulting in a “video of a video.” Order, McLeod v. Enzo’s Pizza, LLC (Dekalb Cty State Ct., Oct. 25, 2021). This preservation method degraded the resolution of the footage and did not capture the full length of the original surveillance video. The trial court concluded that the cell phone video was an inadequate substitute for the original video.
Although digital media can create new preservation pitfalls for the unsuspecting potential litigant, courts in Georgia are beginning to find nuance in spoliation issues regarding digital evidence. In Brown v. SSA Atlanta, LLC, No. CV419-303, 2021 WL 1015891, at *1 (S.D. Ga. Mar. 16, 2021), a federal district court magistrate judge denied a defendant’s request for attorneys’ fees where a plaintiff had “deactivated” his Facebook account and instead ordered the plaintiff to produce account data for each Facebook account he maintained, whether “deactivated” or not. Id. at *5. In so ruling, the magistrate judge noted a distinction between “deactivating” versus “deleting” social media accounts, finding that “deactivation” leaves open the possibility of “reactivation,” while deletion is a “much more permanent step.” Id. at *3. While a more nuanced analysis of digital spoliation issues could open the door to new arguments against sanctions, all potential litigants should be cautioned: as courts become more tech-savvy, parties will likely be expected to become more tech-savvy too.
The proliferation of recorded data has led to its expanded use in litigation. While digital recording devices often provide the most reliable and objective source of data, the existence and precise nature of the data is often overlooked by potential litigants. With that in mind, potential litigants and their representatives should educate themselves on all possible sources of evidence to avoid the pitfalls of spoliation sanctions.
Attorney Contact Info
Brendan Thompson
brendan.thompson@swiftcurrie.com
404.888.6223