Case Review
THE SILVER LININGS OF SAYING “YES”
By Sam Crochet
Hall, Booth, Smith, P.C.
[email protected]
N
o” is not in the vocabulary of any new associate at
any law firm. Further, bets are off when one goes
head to head against an attorney representing an
extremely close family friend. That is how I recently
found myself working after midnight on a response brief to a
plaintiff’s seventh request for spoliation sanctions for expired
video footage related to a decade old premise liability case. To
make matters more interesting, the partner assigning me the
brief had just passionately argued the Georgia Supreme Court
case that clarified (or, for me, complicated) “notice” criteria for
potential defendants seeking to determine when they have
a duty to preserve evidence. With a spoliation charge being
my opponent’s one possible lifeline, it goes without saying I
wanted to win.
“
The Supreme Court case in question was Phillips v. Harmon
(decided June 29, 2015). By peeling back the layers of the
opinion, I was able to draft a brief adequately contesting
Plaintiff’s counsel’s position on several fronts. However, the
secondary benefit was grasping the opinion’s downstream
effect and understanding how to counsel future clients in a
rather uncertain area of the law.
To explain, in the age of electronic documentation, evidentiary
spoliation has risen to the forefront of court decisions. Until
this summer, the Court of Appeals had held a potential
defendant lacked a duty to preserve evidence until a potential
plaintiff provided notice of possible litigation. However, the
Supreme Court rebuffed this standard—making it more
difficult for potential defendants to ascertain when they
have a preservation duty. Phillips was a medical malpractice
case arising out of a birth at the Defendant hospital. The
evidentiary issue concerned “fetal strips” (generated by
a heart rate monitor) on which Defendant’s nurses would
notate. The Defendant destroyed strips after 30 days per
standard procedure. After this time period elapsed, Plaintiffs
argued certain strips were significant to their case.
The Defendant argued the Plaintiffs had not yet
communicated or threatened potential litigation, which the
Court of Appeals relied on in ruling the Defendant hospital
had lacked a duty to preserve the evidence. The Supreme
Court reversed stating the (1) duty to preserve evidence
triggers when litigation is “reasonably foreseeable to that
party” and (2) notice can be actual or constructive. The
Court then expanded the criteria used to determine notice
8 THE ATLANTA LAWYER
December 2015
by establishing potential defendants’ own actions and
other circumstances are relevant in considering whether
they have constructive notice. “Circumstances” include:
1. The type and extent of the injury
2. The extent to which fault for the injury is clear
3. The potential financial exposure if faced with a finding of
liability
4. The relationship and course of conduct between the
parties, including past litigation or threatened litigation
5. The frequency with which such litigation occurs in similar
circumstances.
The court went on to state parties should consider “what
the defendant did or did not do in response to the injury,”
including initiation and extent of investigation, reasons for
notification of counsel and insurers, and expression by
defendant it was acting in anticipation of litigation.
By applying Phillips to facts from my case, I confronted the
potential consequences of the decision, which other young
associates might not be exposed to from email updates and
Daily Report notifications alone. For example, the court’s
interpretation of “other circumstances” hints that more
exhaustive discovery efforts/costs could occur for the sake of
analyzing “what the defendant did or did not do in response
to the injury.” While researching my argument, I also
considered the situation where a plaintiff seeks to uncover the
percentage that a grocery store’s past slip and fall incidents
resulted in litigation. Should the percentage exceed 50%, a
court could feasibly rule a subsequent slip and fall triggered
reasonable foreseeability of litigation. Since this area is now
more fact intensive, it behooves defendants to act cautiously
and revise standard procedures to create more conservative
policies concerning not only what to preserve, but also when
to do it. Failing to do so could result in a very prejudicial jury
instruction, which could allow a persistent plaintiff’s counsel
to succeed on his seventh bite at the apple.
Overall, my reluctant acceptance of the task awarded me with
an up-to-date understanding of Supreme Court precedent.
The second silver lining? A bit of foresight with which to
counsel future clients, which never would have occurred had
I not agreed to lumber through the heavy analysis of a ruling
hot off the Supreme Court press.
The Official News Publication of the Atlanta Bar Association