The Court of Appeals clarified that a party has no duty to preserve evidence if it has no actual or constructive knowledge of a lawsuit. Creek House Seafood & Grill, LLC v. Provatas, A20A1631, 2021 WL 837083 (Ga. Ct. App. Mar. 5, 2021). The Court stated:
Spoliation refers to the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. Such conduct may create the rebuttable presumption that the evidence would have been harmful to the spoliator. 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. In the case of a defendant, such duty arises when the alleged spoliator has actual or constructive notice that the plaintiff is contemplating litigation
Id. at *2. The Court stated the party received actual notice of impending litigation when that party received a preservation letter 9 days after the injury occurred. Id. The letter demanded video surveillance of the injury be preserved, however, the video surveillance system was set to overwrite footage every 7 days. Id. at *1. Therefore, the party was under no duty to preserve the video footage inside of those 7 days despite the video ending up overwritten. Id. at *3. The sanctions were therefore not permissible causing the Court of Appeals to reverse the award of sanctions contained in its spoliation order. Id. at *4.
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