In recent years, many courts, including the Georgia appellate courts, have addressed the issue of what triggers the duty of a party to preserve potential evidence for a dispute. In an era of proliferating electronic documents, that issue has become even more pressing. In a number of cases, the Georgia Court of Appeals held that a potential defendant did not have a duty to preserve potential evidence until a potential plaintiff gave notice of a possible claim. In Phillips v. Harmon, Case No. S14G1868 (decided June 29, 2015), the Georgia Supreme Court rejected that bright line test. That decision may make it more difficult for a potential defendant to determine when it has a duty to preserve evidence.

The Phillips case was a medical malpractice case. The preservation of evidence issue in the case involved the defendant hospital. The malpractice claim arose out of a birth that occurred in that hospital. The evidence at issue in the case was paper strips generated by an electronic fetal heart rate monitor. The nurses often would make notes on the paper strips during labor and delivery. The defendant hospital maintained the paper strips for 30 days post-delivery and then would routinely destroy them. The paper strips at issue in the case were destroyed pursuant to this procedure. The plaintiffs contended that the paper strips with the nurses’ notes were important evidence in their case.

In the trial court, the plaintiffs had claimed that the defendant hospital was on notice of potential litigation regarding the delivery at the time it destroyed the paper strips. After the birth, the hospital had triggered its own incident policy and launched an internal investigation, including questioning the personnel involved in the birth. Further, the defendant hospital notified its insurance carrier and consulted its legal counsel.

At the time the defendant hospital had destroyed the paper strips, the plaintiffs had not notified the defendant hospital of any threatened litigation. Based upon that, the Court of Appeals had ruled that no duty to preserve evidence had been triggered at the time the paper strips were destroyed. The Georgia Supreme Court reversed.

The Court noted that the duty to preserve evidence exists when litigation is pending or is “reasonably foreseeable to that party.” Opinion, p. 19. Notice of the threat of litigation can be actual or constructive. Opinion, p. 20. The Court held that a defendant’s own actions could be relevant in determining whether or not a defendant had constructive notice of potential litigation. In addition, the circumstances of the incident might be relevant to constructive notice. Those circumstances might include

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 such litigation occurs in similar circumstances.

Opinion, p. 21. The Court went on to note that the trial court had “wide discretion in adjudicating issues relating to the potential destruction of evidence.” Opinion, p. 22. The Court remanded the case to the trial court for a determination of whether or not the defendant hospital was on constructive notice of potential litigation at the time it destroyed the paper strips. Opinion, pp. 23-24.

Of note, the Court went out of its way to say that the mere occurrence of an injury and the subsequent questionings of employees about what happened would not trigger a duty to preserve evidence. Opinion, p. 21, n.9.

The Court’s ruling may create a great deal of uncertainty for parties having to decide whether they are on notice of potential litigation and therefore, have a duty to preserve evidence. The circumstances of the event along with a potential defendant’s response to that event may be sufficient to trigger a duty to preserve evidence when the potential defendant has received nothing from the potential plaintiff. Parties will need to be more cautious and conservative in assessing the need to preserve evidence when they are involved in significant accidents or events causing serious injuries.

The Opinion is available here.

For more information on this topic, contact your counsel in our Appellate Practice.