Atlanta Injury Lawyer Blog

Articles Posted in Discovery

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photo_7843_20081107Evidence 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.

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photo_4085_20071113As Vis v. Harris, a recent decision from the Court of Appeals of Georgia, demonstrates, even a standard trip and fall case can lead to protracted litigation. The plaintiff in this case was staying as guest at a Sheraton Hotel in Atlanta in 2008, when she allegedly tripped on a non-visible rise in the hotel carpeting and fell. Following her fall, the plaintiff brought suit against an employee at Sheraton, Starwood Hotels & Resorts Worldwide, the owner of the Sheraton, and Amerimar Courtland Management Co., Inc., a hotel management company that managed the Sheraton.

During the course of discovery, the counsel for the plaintiff had served Amerimar with requests for admissions, to which Amerimar never responded. The issue of Amerimar’s failure to respond to the requests for admissions was raised on numerous occasions during the remainder of pre-trial discovery. At the beginning of trial, following opening statements, counsel for the plaintiff stated that counsel had admissions to read and began listing the various admissions to which Amerimar had not responded regarding its liability in the suit. Counsel for the defendants never objected, and the trial proceeded. After both parties rested their cases, the court dismissed the jury for the day but directed the parties to remain for the charge conference to narrow the issues to be given to the jury to decide. At this conference, the trial judge noted issues regarding the admissions having been read into the record at the beginning of the trial, despite no request from the defendants having been made about the propriety of reading the admissions. After some discussion on the issue, the trial judge ruled that the admissions would be withdrawn from the record for the jury’s consideration but permitted the plaintiff’s counsel to make his objection to the decision part of the record. Afterward, the parties gave closing arguments, and the case was then given to the jury. Finding the jury’s ultimate decision in favor of the defendants unsatisfactory, the plaintiff’s counsel appealed, arguing that the trial court’s independent decision to withdraw Amerimar’s admission from jury consideration after the close of evidence was reversible error.

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