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When a serious accident happens, a swift response is oftentimes necessary to preserve any and all relevant and discoverable data from the involved vehicles.  The obvious question that arises is whether there is an obligation on the part of an insurance carrier investigating a claim to allow a claimant or claimant’s attorney to participate in an event data recorder (hereinafter “EDR”) download.  Practically speaking, if the claimant is represented by counsel prior to obtaining permission to download the claimant vehicle’s EDR, then the “best practice” would be for the parties to coordinate a mutual inspection and download of the claimant’s vehicle.  If claimant or claimant’s counsel refuses to allow a download of the claimant’s vehicle, then the defense may have the opportunity to argue spoliation if that information is not preserved, as will be explained below.  The practical and legal considerations for trucking companies, their drivers, and insurance carriers have far-reaching effects.

A. Background and Spoliation

In 2015, the Georgia Supreme Court altered the spoliation landscape with a decision that has already had an impact upon spoliation and how it is treated by the trial courts.  The Court in Phillips v. Harmon, 297 Ga. 386 (2015) echoed its previous definition of spoliation of evidence in existing case law.  “The term “spoliation” is used to refer to the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation.”  Phillips, 297 Ga. at 393-94, 774 S.E.2d at 603, citing Silman v. Assoc. Bellemeade, 286 Ga. 27, 28, 685 S.E.2d 277 (2009).  The definition is rather expansive.  An affirmative act in destroying evidence is not required.  To trigger a potential sanction for spoliation of evidence, all it takes is a failure to preserve evidence.

Although it seems simple, two threshold requirements must be satisfied before a duty to preserve evidence arises.  First, the evidence in question must actually exist in the first place.  Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 847-48 (2012).  Second, the evidence must be in control of the party against whom spoliation is alleged.  Jones v. Krystal Co., 231 Ga. App. 102, 107 (1998).

Litigants are only subject to spoliation sanctions if a duty to preserve evidence in question arises.  “[I]n order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue.”  Phillips, 297 Ga. at 394, 774 S.E.2d at 603, citing Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807(6), 748 S.E.2d 281 (2013).  So, Phillips makes it clear that for spoliation sanctions to be appropriate, there (1) must be a duty to preserve the evidence in question and (2) a failure to preserve the evidence.

Phillips changed the landscape as to when this duty arises.  Since Phillips, the Court of Appeals has acknowledged this shift:

“In Phillips, our Supreme Court overruled a long line of precedent from this Court in which we had held that a defendant’s duty to preserve arises only when the plaintiff’s actions have provided the defendant with actual or express notice that the plaintiff is contemplating litigation.  Phillips enunciated two concepts on the issue of notice: (1) notice may be actual or constructive and (2) the defendant’s actions may be relevant to that determination because such activity may be an expression by the defendant that it was acting in anticipation of litigation.”  (emphasis supplied).

Cooper Tire & Rubber Co. v. Koch, 339 Ga. App. 357, 360, 793 S.E.2d 564, 566–67 (2016), cert. granted (May 15, 2017), aff’d, 303 Ga. 336, 812 S.E.2d 256 (2018) (citations and punctuation omitted).

In other words, receiving a letter of representation from a claimant’s attorney is enough to trigger a duty to preserve evidence.  However, it is not required.  If an insurance carrier or a defendant has reason to believe that litigation will arise from an accident, then the duty to preserve evidence may also be triggered.

B. Spoliation Is a Two-Way Street

Spoliation classically has applied to defendants in civil litigation.  “As to the opposing party, usually the defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of “notice” to the defendant.”  Phillips, 297 Ga. at 396, 774 S.E.2d at 604-05, citing Hand v. South Georgia Urology Center, P.C., 332 Ga. App. 148, 769 S.E.2d 814 (2015); Allen v. Zion Baptist Church of Braselton, 328 Ga. App. 208, 216–217(3), 761 S.E.2d 605 (2014).

Spoliation also applies to plaintiffs.  “In regard to the injured party, usually the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is obviously foreseeable to the plaintiff at that point.”  Phillips, 297 Ga. at 396, 774 S.E.2d at 604.  Spoliation, therefore, is a two-way street.  If a claimant was contemplating litigation at the time certain key evidence was destroyed or lost, and the other requirements are met, the claimant might be subject to a jury charge on spoliation.

C. Factors To Consider When Evaluating Spoliation Allegations

When does the duty to preserve evidence arise?  “[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.”  Phillips, 297 Ga. at 396, 774 S.E.2d at 604.  The Phillips Court listed several factors that it will consider in evaluating whether a party is “contemplating litigation” or whether litigation is “reasonably foreseeable.”  These factors include:

1. Type and extent of the injury;
2. The extent to which fault for the injury is clear;
3. The potential financial exposure if faced with a finding of liability;
4. The relationship and course of conduct between the parties, including past litigation or threatened litigation; and,
5. The frequency with which litigation occurs in similar circumstances.

Phillips, 297 Ga. at 397.

What are some examples of cases in which litigation was contemplated?  Appellate courts will review a trial court’s findings on spoliation allegations under an abuse of discretion standard, often upholding the trial court’s findings if there is any evidence to support them.  Phillips, 297 Ga. at 397; Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 847-48 (2012) (hereinafter Treadwell).  Therefore, appellate courts often give trial courts wide latitude when addressing issues of spoliation.

In Wiedeman v. Canal Insurance Company, 2017 WL 2501753 (N.D. Ga. June 9, 2017), Judge Duffey in the Northern District found that spoliation sanctions were not warranted in a case involving a vehicle owner and lessee.  The Court found that the defendants were not anticipating litigation when three days after an accident, a truck lessee returned the truck to the owner who ultimately performed preventative maintenance that erased any engine control module (hereinafter “ECM”) data from the truck’s on-board computer.  The defendants did not know that the ECM data would be erased in this regular maintenance.  Id. at *2.  The plaintiff alleged that this failure to preserve the ECM data before the regular maintenance constituted spoliation of evidence.  Id. at *2.  The Court found that the defendant owner and lessee did not anticipate litigation because, from the defendants’ perspective, everyone agreed that the accident was the plaintiff’s fault.  The plaintiff was cited for the accident and even told the officer at the scene that “he did not know what he was thinking running the red light.”  Id. at *2.  The Wiedeman case is a good example of the many hurdles that plaintiffs have to clear in seeking spoliation sanctions.

In Treadwell, the Court of Appeals parsed out several different categories of evidence in finding that some evidence was spoliated while other evidence was not.  The defendants in Treadwell, knew that the plaintiffs were “very adversarial” and the company representative even foolishly testified that “every collision that occurs on the highway does involve a claim.”  318 Ga. App. at 845.  Plaintiffs alleged that the defendants failed to preserve certain evidence that included the driver’s logbooks, GeoLogic GPS data, ECM data, and investigation results.  The Court found evidence of spoliation where the defendants had possession of the driver’s logbooks for over a year and then purged the logs after arbitration proceedings.  Id. at 846.  The same logic applied to the GeoLogic data.  Id. at 847.  However, regarding the ECM data, there was no evidence from either side that the vehicle’s ECM would ever have recorded a “hard brake event” even if it were preserved.  Id. at 847-48.  The defendants downloaded the ECM data and provided the download to the plaintiffs.  However, the download only contained the computer parameters, not whether any hard brake events occurred.  The Court did not find spoliation of the ECM data because the plaintiffs could not prove that the hard brake data ever existed in the first place.  Id.

In another opinion, Judge Duffey did not find any spoliation when a truck was moved forward by a tow-truck operator after a collision and thereby erasing black box data.  Griffin v. New Prime, Inc., 2014 WL 212537 (N.D. Ga. Jan. 13, 2014).  With this particular EDR, it would overwrite any prior data after the engine was restarted and the vehicle was moved.  Id. at *2-3.  The Court found that defendants were not responsible for spoliation because they did not knowingly move the truck – the truck was moved forward by a tow-truck operator with the state patrol’s consent before the defendants’ representatives arrived on scene.  Id. at *4-5.  Therefore, there was no purposeful or willful destruction of evidence.  Id.  The Court poignantly wrote, “A failure to preserve evidence, without any degree of culpability, does not constitute as spoliation of evidence.”  Griffin, 2014 WL 212537, at *5.

In another case, a tractor-trailer accident happened on September 10, 2008, prompting the safety director for the defendant trucking company to send an email asking the company to preserve all documents related to the driver’s personnel records, drivers logs, maintenance records, and other records relating to the tractor and trailer.  Howard v. Alegria, 321 Ga. App. 178, 179-80 (2013).  The safety director sent this email 6 days after the accident but, five days after the accident, the company had begun repairs on the tractor-trailer because the accident was “caused by the Plaintiff’s negligence.”  Id. at 180.  The company downloaded data from the truck’s computer, but the data was inadvertently destroyed during the download process.  In upholding the trial court’s decision to award sanctions against the defendant trucking company for spoliation of evidence, the Court of Appeals stressed that the onboard computer data was “the highest and best evidence of what actually occurred at the time of the collision in this case.”  Id. at 185.  The Court did not take mercy on the defendant for the inadvertent destruction of data from the truck’s computer.  Instead, the Court stressed that objective nature of the EDR data in finding that spoliation sanctions were appropriate.

The appropriate question at this juncture is, “What is the consequence of a trial court’s finding of spoliation?”  There is no independent claim against a person or entity for spoliation of evidence.  There are no recoverable damages for spoliation of evidence.  Rather, if spoliation of evidence is proven, the “victim” of such spoliation may ask the trial court for a jury instruction.  “Such conduct may give rise to the rebuttable presumption that the evidence would have been harmful to the spoliator.”  Phillips, 297 Ga. at 394, citing Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525(1) (1997).  If a plaintiff presents evidence sufficient to convince a judge that spoliation of evidence has occurred, a plaintiff’s attorney will be able to argue spoliation to the jury.  The attorney will argue that the “missing” evidence was the most damning, most harmful, and most devastating to the defendants, even if the evidence was not harmful in the least.  For instance, a plaintiff’s attorney will argue that the absence of a commercial truck driver’s logs means that those logs would have showed a violation of the hours of service requirements.  The absence of documented drug test results means that the results would have been positive for banned substances.  The absence of any EDR data from the insured’s vehicle confirming his story that he was not speeding means that the insured’s testimony cannot be trusted.  These arguments allow plaintiffs’ attorneys to turn a jury’s skepticism against the defendants whom they have demonized all trial long.

D. Practical Implications on EDR Downloads

Although Phillips changed the landscape on spoliation, there is still case law that exists which holds insurers to higher standards when it comes to spoliation.  The Court of Appeals has stressed that:

“Insurance companies are no strangers to litigation, and it seems [very] likely that Plaintiff [insurance company] had litigation in mind when, very soon after the fire, it had its own expert examine the site…. Knowing what it did [after its investigation], Plaintiff [insurance company] was palpably remiss in failing to make reasonable arrangements within the range of possibility to preserve the evidence…. It could have made the necessary arrangements to prevent destruction … until a period of time after commencement of [the] suit to afford any diligent defendants an opportunity to [investigate]….”

Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (1996) (emphasis supplied).

If a claimant or claimant’s attorney refuses our request to download the EDR from the claimant’s vehicle, then we may be able to argue spoliation against the claimant if the case proceeds to litigation.  Of course, we will have to satisfy each element listed above, proving that the EDR data existed, what the EDR data would have shown, and that the claimant had control of the EDR data before it was destroyed.

The case law seems to suggest that insurers are not required to allow the claimant or their counsel the opportunity inspect and download the insured vehicle’s EDR absent a request from claimant’s counsel to inspect and download the vehicle.  If claimant’s counsel requests an opportunity to inspect the vehicle and take part in the EDR download, this request should be honored as a “best practice” in order to avoid any future allegations of spoliation.

The natural issue arises of what happens when an insured vehicle has already been downloaded and the vehicle either repaired or sold for salvage before receiving a letter of representation from the claimant.  As the Phillips decision makes clear, it depends on what the defendant or their representatives reasonably believed as to the possibility of litigation.  The Chapman case holds insurance carriers to a higher standard regarding its expectations on litigation.  If an insurer is going to take the affirmative step of downloading EDR from its insured’s vehicle following an accident, it must make sure that the data is preserved in a readable and usable format for future experts to decipher in order to avoid the harsh result from Howard v. Alegria, 321 Ga. App. 178, 179-80 (2013).  So long as the EDR data is preserved in a format that may be used and interpreted by the claimant, then a court would likely find that there was no spoliation, much in the way that the Treadwell and Wiedeman Courts addressed the ECM data in those cases.  In Wiedeman, spoliation sanctions were not imposed in part because (1) the vehicle owner was unaware of any contemplated legal action against it by the plaintiff and (2) neither the owner nor the lessee were aware that the ECM data was reset in the regular maintenance.  EDR data is discoverable in the event a case proceeds to litigation.  So long as that data is preserved and available for later production if the case proceeds to litigation, the defendant and counsel have a strong argument against the imposition of spoliation sanctions.