Evidence is of undeniable importance in every legal action. Indeed, one would find it difficult to succeed in a breach of contract case if he or she were unable to produce the contract at issue. Although parties can typically be trusted to not tamper with the sharing of possible evidence during the discovery process, arguments regarding misconduct during discovery are not uncommon. In fact, a federal magistrate judge for the South District of Georgia recently had to resolve a dispute involving alleged spoliation in an ongoing premises liability case, Pinkney v. Winn-Dixie Stores, Inc.
Pinkney arose from a slip-and-fall incident at a Winn-Dixie Supermarket in Southern Georgia. Having sustained injuries from this fall, the plaintiff brought a premises liability suit against Winn-Dixie. During the course of discovery, the plaintiff made a motion to compel production, which included a demand for photographs taken at the scene of the incident, which were allegedly in the defendant’s possession. The magistrate judge dismissed this motion as moot, finding the defendant’s explanation that no such photos were in its possession as dispositive. However, following denial of this motion, the plaintiff acquired additional evidence, which included deposition testimony of one of the defendant’s employees who averred that it is store policy to photograph the scene of a slip-and-fall immediately following the incident, upload those photographs to the store computer, email them to a claim management company, and then deliver hardcopies to Winn Dixie’s main office. The plaintiff also deposed a former employee who stated that he prepared the incident report for the plaintiff’s fall and followed the protocol for disseminating the photographs outlined above. After acquiring this evidence, the plaintiff made a motion alleging that the defendant’s failure to preserve the photographs constitutes spoliation that warrants judicial sanctions, including instruction to the jury on spoliation, and a finding against defendant on the issues of negligence and causation that the defendant would be precluded from contesting.
In support of this motion, the plaintiff predicated its argument on the doctrine of continuity, which provides that evidence proven to have existed is presumed to still exist in the absence of an intervening act. Since the deposition testimony tended to show that the photographs existed, the plaintiff argued that the only possible reason for their absence was a purposeful act by the defendant to destroy them. The plaintiff argues that such purposeful destruction constitutes spoliation, since the defendant had notice of the possibility of litigation. In determining whether to grant the plaintiff’s motion, the magistrate judge first noted that “an adverse [spoliation] inference is drawn from a party’s failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). Although malice is unnecessary for a showing of bad faith, the conduct must go beyond mere negligence. Id. However, a party may prove bad faith through circumstantial evidence. Thornton v. Blitz USA, Inc., 850 F. Supp. 2d 1374, 1376-77 (S.D. Ga. 2011).
In this case, the magistrate judge found that the plaintiff failed to offer sufficient evidence of bad faith. Although the continuity doctrine permits an inference of the photographs’ existence, the existence and subsequent disappearance of photographs is insufficient to show bad faith when the disappearance could be explained by mere negligence. Although the court had found bad faith to be present when the existence of evidence is shown and the disappearance of such evidence would likely only be achieved through an affirmative act of destruction, see, e.g., Connor v. Sun Trust Bank, 546 F. Supp. 2d 1360, 1367, 1377 (N.D. Ga. 2008) (finding bad faith when evidence showed that an employee must have “affirmatively deleted” a relevant e-mail, because the employee had received preservation instructions and the e-mail system’s automatic deletion process would not have acted on the email within that period of time), the photographs at issue here could have been lost as a result of negligence. Indeed, the court noted that the plaintiff did not submit evidence showing that the second deponent “correctly uploaded the photographs into the system for transmission” or that once uploaded those pictures could have only disappeared through affirmative action. Thus, the judge concluded that the plaintiff’s motion should be denied.
Although the court concluded that spoliation could not be proven, disappearance of these conceivably probative photographs is troubling. While most litigants would not knowingly destroy possible evidence, potential liability can motivate unscrupulous behavior, and litigants should consider having the aid of counsel in case such unprincipled conduct arises. The Atlanta premises liability attorneys at the Law Office of Terrence R. Bethune have litigated many negligence actions in both state and federal court and are experienced with all facets of the discovery process. If you’re considering bringing legal action to redress a possible act of negligence, feel free to contact us for a free case evaluation to discuss your options.