The Georgia Court of Appeals decided that a trial judge erred in instructing the jury on spoliation of evidence that effectively made the question whether spoliation occurred a fact question for the jury to decide, after several of defendant's witnesses testified at trial that they had watched video surveillance footage that was not produced to the Plaintiff.
“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation omitted.) AMLI Residential Properties. v. Ga. Power Co., 293 Ga. App. 358, 361 (1), 667 S.E.2d 150 (2008). Among the possible sanctions for spoliation is a jury instruction that allows an adverse inference that the lost or destroyed evidence would have been harmful to the party in control of the evidence. Anthem Cos. v. Wills, 305 Ga. 313, 316 (2), 823 S.E.2d 781 (2019). Georgia appellate courts have cautioned that this jury instruction is a “severe sanction,” Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336, 343 (2), 812 S.E.2d 256 (2018), to be generally reserved for intentional destruction of material evidence. Id. at 343 (2) (d), 812 S.E.2d 256; Creek House Seafood & Grill, LLC v. Provatas, 358 Ga. App. 727, 731 (2), 856 S.E.2d 335 (2021) (recognizing that the adverse inference jury charge should be reserved for “exceptional cases”).
The Court of Appeals reiterated that spoliation of evidence is not a fact the jury gets to find by an inference. Instead, whether spoliation occurred is a question to be decided by the Court prior to trial. Hillman v. ALDI, Inc., 349 Ga. App. 432, 443-444 (3), 825 S.E.2d 870 (2019)(recognizing that the party suspecting spoliation was required to obtain a ruling from trial court prior to making spoliation argument to jury).
Prior to charging the jury on spoliation, the trial court must determine “whether spoliation occurred, whether the spoliator acted in bad faith, the importance of the compromised evidence, and so on.” Demere Marsh Assoc., LLC v. Boatright Roofing & Gen. Contracting, Inc., 343 Ga. App. 235, 248 (4), 808 S.E.2d 1 (2017). Once a trial court has determined that spoliation has occurred, the court should weigh the following five factors when deciding the appropriate penalty:
(1) whether the party seeking sanctions was prejudiced as a result of the destroyed evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert testimony about the destroyed evidence was not excluded.
(Citation and punctuation omitted.)Creek House Seafood & Grill, 358 Ga. App. at 730 (2), 856 S.E.2d 335.
Ultimately, because there was no evidentiary hearing regarding the video that defendant failed to produce, no request for sanctions, and no motion or request for a spoliation inference, the Court could not allow the charge to the jury without making the legal determination that spoliation occurred prior. The concurrence by Judge Miller noted the fact (left out by the majority) that one of the witnesses who testified in front of the jury that certain parts of the video surveillance footage was not included to the Plaintiff had stated the same fact in his/her deposition while discovery was still open. Judge Miller highlights to future litigants that after this deposition the Plaintiff should have moved to compel and sought a spoliation determination at that point, not mid-trial during the charge conference.