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Duty to Preserve Relevant Evidence

     A recent decision by the Supreme Court of Georgia clarifies when a potential defendant’s duty to preserve relevant evidence arises, and overrules a long line of Court of Appeals cases that suggested only express notice from the plaintiff would trigger a duty to preserve. Rather, the Supreme Court found that notice can be constructive, and whether a defendant is on notice that litigation may arise can be determined based on the defendant’s own response to an incident, or even just the severity of the injury.

     In Phillips v. Harmon, 2015 WL 3936826 (Ga. June 29, 2015), a mother brought a medical malpractice suit against the midwife and doctors involved in her son’s birth and the medical center where he was born, alleging that their negligence deprived the baby of oxygen before birth. As a result, the mother alleged, her son was born blind, mute and quadriplegic. During a birth, nurses at the medical center frequently took notes on the paper printouts from the machine that monitored fetal heart rate. The notes on these printed fetal monitor strips might be used to help create an official medical record, but they would not become a part of the records, which were kept electronically. The medical center’s standard procedure was to maintain the strips for thirty days after the delivery, then destroy them. During the Phillips’s birth, at least one nurse took notes in this manner, and the strips were later destroyed per standard procedure. There was some evidence that the nurse’s notes had contained information regarding the “timeliness” of the medical response once the fetus started exhibiting signs of distress, information that did not ultimately become a part of the official medical record.

     After a trial, the jury returned a verdict for defendants. Plaintiffs filed a motion for a new trial, alleging among other things that the trial court had erred in failing to give a proposed jury instruction regarding spoliation of evidence, which was based on the destruction of the printed fetal monitor strips. The trial court denied the motion, and the jury instruction issue was ultimately brought before the Supreme Court.

     The Supreme Court of Georgia noted that it is well established that a potential party to litigation has a duty to preserve possible evidence once litigation is “reasonably foreseeable.” However, parties frequently dispute when that is. For a potential plaintiff, the Court explained, this inquiry is fairly straightforward: Litigation is “reasonably foreseeable” when the plaintiff first contemplates it. For a potential defendant, however, the inquiry is more complicated. First, the Court held, notice may be constructive rather than actual. Stated another way, a defendant can be put on notice in more ways than just receiving express notice from the plaintiff. In fact, even the severity for the injury, the frequency with which litigation occurs in similar circumstances, the past relationship between the parties, or the potential financial exposure of the company can give rise to notice that litigation may follow. Second, in determining whether litigation was reasonably foreseeable, the Supreme Court held courts can consider the potential defendant’s own actions, including whether any internal investigation was conducted or whether the incident was reported to risk management or insurers.

     In the wake of the Phillips decision, potential defendants are shouldered with the burden of preserving possible evidence before the plaintiff puts them on notice that they are being sued—in fact, a defendant’s duty to preserve may arise even before the plaintiff contemplates litigation. If the injury is severe, of the type that frequently leads to litigation, or one that requires internal investigation or reporting, the company should consider issuing a document retention notice immediately rather than waiting to see if it is sued. Under the Phillips decision, failure to do so could lead to spoliation.

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