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.