303 Ga. 336 FINAL COPY
S17G0654. COOPER TIRE & RUBBER COMPANY v. KOCH et al.
NAHMIAS, Justice.
This Court granted a writ of certiorari to determine whether the Court of
Appeals in Cooper Tire & Rubber Co. v. Koch, 339 Ga. App. 357 (793 SE2d
564) (2016), properly articulated the legal standard for when a plaintiff’s duty
to preserve evidence begins and properly applied that standard to the facts of this
case. Like a defendant’s duty, a plaintiff’s duty to preserve relevant evidence in
her control arises when that party actually anticipates or reasonably should
anticipate litigation. Because the Court of Appeals appropriately identified and
applied this standard, as did the trial court, we affirm.
1. As summarized by the Court of Appeals:
The facts pertinent to this appeal are largely undisputed. On April 24, 2012, [Plaintiff Renee Koch’s husband, 69-year-old Gerald Koch,] was driving eastbound on Interstate 16 in his 2001 Ford Explorer when the tread on his left rear tire detached. According to the State of Georgia Traffic Crash Report, the Explorer then swerved out of control and traveled approximately 79 feet before striking a guardrail. The vehicle continued to travel in an easterly direction for approximately 134 feet, overturning several times before coming to an “uncontrolled” final rest in the eastbound ditch facing west.
Mr. Koch suffered serious injuries in the accident and was transported by emergency vehicle to the Medical Center of Central Georgia . . . . He was immediately taken to surgery and then to the intensive care unit, where he remained uncommunicative for several days. However, Mr. Koch eventually regained consciousness and was able to talk to his wife about the accident, telling her that the accident occurred when the “tire blew and the car flipped and rolled three or four times.” Unfortunately, Mr. Koch was unable to recover from his extensive injuries, and he died on June 3, 2012 without ever having left the intensive care unit of the hospital. The Ford Explorer was towed from the accident scene by Brown’s Wrecker Service (“Wrecker Service”), where it was placed in a storage yard. Sometime after the accident but before Mr. Koch died, Plaintiff talked to the owner of the Wrecker Service, Edwin Brown, who explained to her that she was being charged a daily storage fee for the vehicle. Plaintiff told Brown she could not afford to pay the storage costs, and he told her that he would not bill her for storage costs if she would transfer the title to him so he could sell the vehicle to a salvage yard where it would be crushed for scrap. Plaintiff said that she did not see any reason to keep the vehicle since it was totaled, so she agreed to transfer the title instead of paying for the vehicle to be stored. However, at some point prior to transferring the title, Plaintiff talked it over with her husband, who told her to tell the Wrecker Service to “save the tires.”1 After instructing Brown to save the left rear tire, Plaintiff relinquished control of the vehicle. Brown then stored the tire,2 and the vehicle
1 There is some question in this case concerning whether Mr. Koch directed Plaintiff to save the “tire” or the “tires.” 2 The record suggests that the tread was never recovered from the accident scene. In any event, basically all that was saved from the vehicle was the sidewall portion of the tire that attaches to the rim.
2 and companion tires were crushed for scrap. Several weeks after Mr. Koch died, his daughter contacted an attorney in her home state of Missouri. The Missouri attorney contacted the Wrecker Service concerning the preservation of the tire and also recommended the daughter contact an attorney in Georgia. Shortly thereafter, Plaintiff retained Georgia counsel, and her attorney retrieved the tire from the Wrecker Service on or about September 26, 2012.
Cooper Tire, 339 Ga. App. at 357-358 (footnotes in original).
In March 2014, Plaintiff filed a product liability complaint for damages
against Cooper Tire & Rubber Company and two other defendants in her
individual capacity and as administrator of her deceased husband’s estate.3
According to the complaint, the 2006 Cooper Tire Mastercraft Courser HTR tire
mounted on the left rear wheel of the Explorer that Mr. Koch was driving suffered
a catastrophic tread separation, causing the vehicle to swerve out of control,
overturn multiple times, and leave the roadway. The complaint included counts
against Cooper Tire for negligent design and manufacture, strict liability, and
failure to warn. Cooper Tire filed an answer which noted that the company
“reserve[d] the right to plead spoliation of critical evidence.” Extensive
3 The complaint also named as defendants the National Automotive Parts Association, Inc., and the garage that sold the tire to Plaintiff’s husband and installed it. These defendants were not involved in the spoliation litigation in the trial court and have not filed anything on appeal or certiorari.
3 discovery ensued, including depositions of Plaintiff and others.
In June 2015, Cooper Tire filed a motion to dismiss the complaint or
impose other sanctions for spoliation. On August 27, 2015, the trial court heard
arguments on the motion, and on September 9, 2015, the court entered an order
denying the motion. The order concluded:
Viewing the evidence from the perspective of the party having control over the subject vehicle, this Court does not find that the facts and circumstances give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.
The trial court granted Cooper Tire’s request for a certificate of immediate
review, and the Court of Appeals granted the company’s application for
interlocutory appeal but then affirmed the trial court’s order, with one judge
concurring in the judgment only.
The Court of Appeals rejected Cooper Tire’s argument that the trial court
erred by focusing on whether Plaintiff subjectively knew that litigation was likely
when the Explorer and the other three tires were destroyed instead of applying
the objective standard for spoliation established by this Court in Phillips v.
Harmon, 297 Ga. 386 (774 SE2d 596) (2015). See Cooper Tire, 339 Ga. App.
at 359-362. The Court of Appeals analyzed this Court’s decision in Phillips
4 before holding:
[T]he issue of whether litigation was reasonably foreseeable to the plaintiff is separate and distinct from whether a defendant actually or reasonably should have foreseen litigation by the plaintiff, and thus we do not believe that the Supreme Court intended those specific factors [listed in Phillips] to apply in determining whether litigation was reasonably foreseeable to the plaintiff. That is not to say, however, that the test is a subjective one for an allegedly spoliating plaintiff. To the contrary, the Supreme Court made it clear that reasonable foreseeability is the touchstone for determining whether a plaintiff was contemplating litigation, and that test has traditionally been described with objective and subjective components — what a reasonable person in the same circumstances as those in which the injured party has found himself would do. . . . Thus, in applying the “reasonably foreseeable” test, it may be appropriate for trial courts to consider similar factors as those described by the Supreme Court in Phillips to determine whether an injured party in that position reasonably should have foreseen litigation at the time the relevant evidence was destroyed.
Cooper Tire, 339 Ga. App. at 361-362 (citations and footnote omitted).
The Court of Appeals noted that the trial court explicitly relied on Phillips
and “discern[ed] no error” in the court’s considering Plaintiff’s testimony about
what her husband intended when he asked her to save one or more tires and why
she decided to transfer the vehicle to the wrecker service “in determining
whether Plaintiff was actually contemplating litigation or whether litigation was
reasonably foreseeable to someone in Plaintiff’s position at the time.” Cooper
5 Tire, 339 Ga. App. at 362. The opinion concluded: “Because the trial court
applied the correct legal theory, the question then is whether the trial court
abused its discretion in denying the spoliation motion. As the trial court’s factual
findings are amply supported by the record, we find no abuse of discretion.” Id.
at 363.
Because of the importance of evidence preservation in civil litigation, this
Court granted Cooper Tire’s petition for certiorari. But the Court of Appeals’
analysis of the issues was essentially correct, so we affirm its judgment.
2. The term “spoliation” refers to “‘the destruction or failure to
preserve evidence’ that is relevant to ‘contemplated or pending litigation.’”
Phillips, 297 Ga. at 393 (quoting Silman v. Assocs. Bellemeade, 286 Ga. 27, 28
(685 SE2d 277) (2009)). A trial court’s finding that a party lost or destroyed
relevant evidence may lead to sanctions, including in the worst cases severe
sanctions such as an instruction to the jury to presume rebuttably that the evidence
was adverse to the spoliating party’s claim or defense, the entry of a default
judgment, or the dismissal of the case. See id. at 398-399. However, before a
remedy for spoliation may be imposed, the party seeking the remedy must show
that the allegedly spoliating party was under a duty to preserve the evidence at
6 issue that was then breached. See id. at 394.
(a) In Phillips, we explained that “the 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.” Id. at 396. Put another way, the duty arises when the
alleged spoliator “actually or reasonably should have anticipated litigation.” Id.
at 397. Cooper Tire suggests that there is uncertainty in the bench and bar about
whether the same duty to preserve relevant evidence applies to plaintiffs as well
as defendants, so let us now eliminate any doubt: the duty is defined the same for
plaintiffs and defendants, and regardless of whether the party is an individual,
corporation, government, or other entity. However, the practical application of
that duty in particular cases may depend on whether the party is the plaintiff or
the defendant as well as the circumstances of the party and the case; consequently,
the duty often will not arise at the same moment for the plaintiff and the defendant,
because of their differing circumstances.4
4 We note that this case, like Phillips, involves the general common-law duty to preserve relevant evidence for litigation. More specific duties to preserve evidence by certain parties or in certain situations may be created by statutes, regulations, court orders, and other sources. See Fed. R. Civ. P. 37 advisory committee’s note to 2015 amendments (hereinafter “2015 Advisory Committee Note”). We cite the 2015 Advisory Committee Note here and below not because it is in any way binding on this Court — indeed, Georgia’s Civil Practice Act does not include a counterpart to Federal Rule of Civil Procedure 37 (e) —
7 (b) In Phillips, the accused spoliator was the defendant hospital, and we
focused on the duty to preserve evidence from that perspective. We disapproved
a line of Court of Appeals cases which held that a defendant’s duty to preserve
evidence requires actual notice of litigation from the plaintiff. See id. at 398 &
n.10. A defendant’s duty obviously arises from actual knowledge that the injured
party is contemplating litigation, as when the plaintiff provides actual or express
notice of a claim. See id. at 396. But, we explained, the duty to preserve
relevant evidence may also arise from constructive notice that litigation is being
contemplated — circumstances demonstrating that the defendant reasonably
should have expected that litigation was forthcoming. See id. at 396-397. In
determining whether the defendant “actually or reasonably should have
anticipated litigation,” the court may consider “what the defendant did or did not
do in response to the [plaintiff’s alleged] injury, including the initiation and extent
of any internal investigation, the reasons for any notification of counsel and
insurers, and any expression by the defendant that it was acting in anticipation of
but because the advisory committee’s notes are often a persuasive scholarly commentary on civil procedure issues, including common law issues of the sort we address in this case. Cf. Walters v. State, 335 Ga. App. 12, 15 n.3 (780 SE2d 720) (2015).
8 litigation.” Id. at 397. We also set forth a non-exclusive list of other
circumstances from which a defendant might derive constructive notice that a
plaintiff is contemplating litigation,
such as the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.
Id. We left it to the trial court to apply those principles on remand to the
circumstances that the evidence showed the defendant hospital was in at the time
it destroyed the paper fetal monitoring strips at issue. See id. at 398.
(c) In this case, the alleged spoliator is an individual plaintiff, and the
duty to preserve evidence must be considered from her perspective. As with
defendants, the duty of plaintiffs to preserve relevant evidence in their control
arises when litigation is actually or reasonably should be anticipated. However,
in practice, because the plaintiff generally controls whether and when litigation
will be pursued, spoliation claims involving a plaintiff’s duty to preserve will
more frequently and easily be resolved based on actual knowledge of litigation
than will claims aimed at defendants. See Pension Comm. of Univ. of Montreal
Pension Plan v. Banc of America Securities, 685 FSupp.2d 456, 466 (S.D. N.Y.
9 2010) (“A plaintiff’s duty is more often triggered before litigation commences,
in large part because plaintiffs control the timing of litigation.”), abrogated in part
on other grounds, Chin v. Port Auth. of N.Y. & N.J., 685 F3d 135 (2d Cir. 2012).
With regard to evidence that is lost before a lawsuit is formally filed by the
plaintiff and served on the defendant (by which point the duty to preserve of both
is crystalized), there will be more cases with clear proof that the plaintiff
actually contemplated litigation at the pertinent time — because, for example, she
consulted an attorney and authorized the litigation, even if a considerable time
passed before anyone advised the defendant about the claim or served the
complaint. We have emphasized that often, “[i]n regard to the injured party,
usually the plaintiff, the duty arises when that party contemplates litigation,
inasmuch as litigation is obviously for[e]seeable to the plaintiff at that point.”
Phillips, 297 Ga. at 396. During that intervening time, the plaintiff would have
a duty to preserve relevant evidence, while the defendant’s duty might not yet
have been triggered if other circumstances did not put the defendant on
constructive notice of the litigation.
Although spoliation disputes may therefore more often require
determination of whether a defendant reasonably should have anticipated
10 litigation, a plaintiff also must act reasonably in anticipating whether litigation
arising from her injury will occur. See, e.g., Graff v. Baja Marine Corp., 310
Fed. Appx. 298, 301 (11th Cir. 2009), cited in Phillips, 297 Ga. at 396; Silvestri
v. Gen. Motors Corp., 271 F3d 583, 592 (4th Cir. 2001). See also Jamie S.
Gorelick et al., Destruction of Evidence § 3.12 – Timing (2018-1 Supp.)
(collecting cases). The reciprocal nature of the duty to preserve is important to
ensure that disputes can be resolved fairly through civil litigation, with both
parties preserving the evidence relevant to accurately resolving the claims and
defenses once the parties reasonably should recognize that litigation is likely to
ensue. Neither party may manipulate the civil justice system by destroying
relevant evidence and then asserting (and hoping a judge will ultimately credit)
a failure to have actually contemplated litigation at that time, when a reasonable
person in the party’s situation would have anticipated a lawsuit.
Accordingly, as the Court of Appeals recognized, “it may be appropriate
for trial courts to consider similar factors as those described . . . in Phillips to
determine whether an injured party in that position reasonably should have
foreseen litigation at the time the relevant evidence was destroyed.” Cooper
Tire, 339 Ga. App. at 362. Contrary to Cooper Tire’s contention, those factors
11 were plainly set forth as a non-exclusive list in Phillips, as discussed above. Not
all of the listed factors will be pertinent in every case; there may be other factors
pertinent in other sorts of cases; and some factors may be more pertinent in
determining whether litigation was reasonably anticipated based not on whether
the alleged spoliator is a plaintiff or a defendant but rather on the party’s
experience and sophistication in matters of litigation. For example, as compared
to an individual who never before has been seriously injured or involved in
litigation, a corporate defendant that routinely faces litigation over the same type
of incident that resulted in the same type of injury that the plaintiff suffered might
well be found to reasonably have greater understanding of certain circumstances
that would put the party on notice that litigation should be anticipated, such as its
“potential financial exposure if faced with a finding of liability,” “the frequency
with which litigation occurs in similar circumstances,” and — especially if the
corporation has already been held liable for injuries based on the same product
defect — “the extent to which fault for the injury is clear.” Phillips, 297 Ga. at
397. Likewise, a plaintiff debt collection company might well be found to
reasonably anticipate litigation earlier than an individual defendant who has
never fallen behind on a debt or been involved with such litigation. See Rimkus
12 Consulting Group, Inc. v. Cammarata, 688 FSupp.2d 598, 613 (S.D. Tex. 2010)
(explaining that the determination of whether litigation was reasonably
foreseeable to an accused spoliator “depends heavily on the facts and
circumstances of each case and cannot be reduced to a generalized checklist of
what is acceptable or unacceptable”).
(d) What a person or organization should reasonably understand or do
in particular circumstances may not be an entirely precise standard, but it is one
used throughout American law. It is important, as the Court of Appeals noted, for
reviewing courts to make every effort to eliminate the “‘distorting effects of
hindsight’” in evaluating whether the accused party reasonably should have
anticipated litigation from the party’s perspective at the time the evidence in
question was lost or destroyed. Cooper Tire, 339 Ga. App. at 362 n.3 (quoting
Forshee v. Employers Mut. Cas. Co., 309 Ga. App. 621, 624 n. 2 (711 SE2d 28)
(2011) (Blackwell, J.)).
It also should be recognized that the most severe sanctions for spoliation
are reserved for “‘exceptional cases,”’ generally only those in which the party
lost or destroyed material evidence intentionally in bad faith and thereby
prejudiced the opposing party in an uncurable way. See Phillips, 297 Ga. at 398
13 (citation omitted). The loss of relevant evidence due to mere negligence —
including negligence in determining when the duty to preserve evidence arose —
normally should result in lesser sanctions, if any at all. See, e.g., R & R
Insulation Svcs., Inc. v. Royal Indem. Co., 307 Ga. App. 419, 437-439 (705 SE2d
223) (2010) (finding no abuse of discretion where the trial court denied the
defendants’ motion to dismiss due to spoliation because the plaintiff’s destruction
of equipment at the scene of the fire was not malicious); Bagnell v. Ford Motor
Co., 297 Ga. App. 835, 840 (678 SE2d 489) (2009) (finding no abuse of
discretion where the trial court declined to impose spoliation sanctions after
concluding in part that the plaintiff’s failure to preserve the van involved in the
wreck “resulted from negligence, rather than bad faith”).
We see no indication that the Court of Appeals or the trial court
misunderstood these points, although those courts may not have expressed them
exactly or as extensively as we have.
3. We also see no error in the Court of Appeals’ upholding the trial
court’s ruling that the Plaintiff did not yet have a duty to preserve evidence at the
time Mr. Koch’s vehicle and the remaining tires — which everyone agrees would
be relevant evidence in this litigation — were destroyed by the Wrecker
14 Service.5 As the Court of Appeals recognized, “[a] trial court has wide
discretion in resolving spoliation issues, and ‘such discretion will not be
disturbed absent abuse.’” Cooper Tire, 339 Ga. App. at 359 (quoting Phillips,
297 Ga. at 397). But the way in which Cooper Tire raised and the trial court
resolved the spoliation claim against Plaintiff is also important to the review of
this issue. Cooper Tire filed a pretrial motion to dismiss the complaint or impose
other sanctions for spoliation, but did not request an evidentiary hearing on the
motion. In resolving the motion, the trial court, without objection, considered
matters outside the pleadings, including witness affidavits and depositions, but
did not hold an evidentiary hearing at which the court could decide the credibility
of those witnesses. Cf. OCGA § 9-11-12 (b), (d); Johnson v. RLI Ins. Co., 288
Ga. 309, 309 (704 SE2d 173) (2010); Ga. Power Co. v. Harrison, 253 Ga. 212,
214-215 (318 SE2d 306) (1984). Thus, under the circumstances presented here,
the motion is properly reviewed under the standard applicable to a motion for
summary judgment, and as the party opposing the motion, Plaintiff is “entitled to
5 In this case and others involving a key piece of tangible evidence that was lost, the relevance of the lost evidence to the lawsuit that ultimately was filed may be obvious. In other cases, however, especially those involving extensive amounts of electronically stored information, the scope of the evidence the party reasonably should have understood to be relevant and the steps the party reasonably needed to take to preserve that evidence may be difficult and disputed issues. See generally 2015 Advisory Committee Note.
15 have the evidence in the record viewed in the light most favorable to [her] and
to have all reasonable inferences from the evidence drawn in [her] favor.”
McBee v. Aspire at W. Midtown Apartments, L.P., 302 Ga. 662, 663 (807 SE2d
455) (2017).
Applying that standard, it is easy to determine that Plaintiff did not actually
contemplate litigation at the time the evidence at issue was destroyed: she said
as much in her deposition, that testimony must be credited in the current
procedural posture, and there is no evidence to the contrary. The question of
whether Plaintiff reasonably should have anticipated litigation over her
husband’s single-vehicle crash is closer because of his statements to her, when
he regained consciousness in the hospital a couple of days after the crash, that the
accident occurred after “the tire blew” and that she should tell the Wrecker
Service to “save the tires” or “save the tire.” Such statements might heighten the
reasonableness of anticipating litigation if made by or to a tire manufacturer
accustomed to product liability litigation after one-vehicle crashes in which its
tires blew and severe injuries resulted. But they would not necessarily do so for
an individual with no apparent previous experience with litigation.
As the trial court explained, Plaintiff’s husband did not give a reason for
16 his request that she save the tires, much less suggest that she should do so because
the tire had a design or manufacturing defect that could lead to litigation against
its manufacturer. It would not be unreasonable to infer that he may just have
wanted to examine the tire to see if he could tell what happened after he
recovered his health; at the time, he and Plaintiff expected that he would recover.
See Phillips, 297 Ga. at 397 n.9 (noting that the duty to preserve “does not arise
merely because the [party] investigated the incident, because there may be many
reasons to investigate incidents causing injuries” (emphasis in original)).
Moreover, Plaintiff had legitimate reasons not to preserve the vehicle and the
other tires — the vehicle was totaled, there was no collision insurance on it, she
could not afford to pay the storage costs for it, and her focus at the time was on
her husband’s well-being in the hospital.
At the time the evidence was lost, Plaintiff was not investigating the crash,
counsel had not been notified, and neither Plaintiff nor her husband had expressed
that anyone was acting in anticipation of litigation. See Phillips, 297 Ga. at 397.
There is no evidence that Plaintiff or anyone else examined the vehicle before it
was destroyed and kept only the one tire because it would aid her case, nor is
there evidence that she or anyone else paid any attention to the saved tire for
17 weeks after the rest of the vehicle was destroyed. It appears that litigation came
into the picture many weeks after Mr. Koch’s statements, after he died and his
daughter apparently raised the issue of hiring an attorney. Indeed, it appears from
the current record that when Mr. Koch’s daughter contacted the attorney in
Missouri, he took steps to preserve the evidence, only to find that everything but
the one tire had been destroyed.
The trial court viewed the record in the light most favorable to Plaintiff and
made inferences in her favor, viewed the circumstances from her perspective at
the time the evidence at issue was destroyed, and concluded that she did not
actually contemplate and should not reasonably have contemplated litigation at
that time; accordingly, the trial court ruled that she had no duty to preserve the
lost evidence and denied the spoliation motion. Like the Court of Appeals, we
see no error of law or abuse of discretion in the trial court’s judgment. See
Cooper Tire, 339 Ga. App. at 362-363.
This case is similar to Punch v. Dollar Tree Stores, Inc., No. CV 12-154,
2017 WL 752396 (W.D. Pa. Feb. 17, 2017), report and recommendation adopted,
No. CV 12-154E, 2017 WL 1159735 (W.D. Pa. Mar. 29, 2017). There, the
plaintiff parents disposed of the battery-lighted tweezers that they later claimed
18 were defective and had injured their infant son, and the defendants sought
dismissal of the lawsuit based on spoliation. See id. The trial court concluded
that litigation was not reasonably foreseeable to the plaintiffs at the time the
evidence was lost, and thus no duty to preserve the product had been triggered at
the time it was destroyed, based on circumstances which included that the father
threw away the tweezers a couple days after their son was admitted to the
hospital, before the full extent of his injuries was known and while the father was
focused more on the health of his injured child and other children than potential
litigation; that the father, who was a layperson, testified that he was not
considering the possibility of a lawsuit at the time; and that the plaintiffs did not
contact an attorney until two months after the injury. See id. The cases on
which Cooper Tire relies are distinguishable. In those cases, the plaintiff had
contacted an attorney, and in many cases had taken other steps toward litigation,
before allowing key evidence to be destroyed, facts that suggested actual as well
as constructive contemplation of litigation. See, e.g., Bridgestone/Firestone
North American Tire v. Campbell, 258 Ga. App. 767, 767 (574 SE2d 923)
(2002) (holding that the plaintiff’s destruction of the wrecked vehicle and tires
after he contacted an attorney, took pictures of the car and tires, and had the tires
19 examined by a forensic tire engineer amounted to spoliation); Flury v. Daimler
Chrysler Corp., 427 F3d 939, 941 (11th Cir. 2005) (holding that the plaintiff
spoliated evidence by failing to preserve the wrecked vehicle after his attorney
had notified the defendant of the accident and ignored the defendant’s request to
inspect the vehicle); Silvestri, 271 F3d at 586 (holding that the plaintiff spoliated
evidence by failing to preserve the wrecked vehicle after hiring an attorney and
accident reconstructionists); Sylla-Sawdon v. Uniroyal Goodrich Tire Co., 47
F3d 277, 281 (8th Cir. 1995) (holding that a spoliation sanction was proper
where the plaintiff destroyed the wrecked vehicle after her counsel inspected it).
Such facts are entirely absent in this case.
Cooper Tire complains that upholding the trial court’s judgment will
prejudice its ability to defend against Plaintiff’s claims. That may be, given the
type of evidence lost in this case. But the loss of that evidence will likely
prejudice Plaintiff’s case at least as much, because she bears the burden of
proving — without the vehicle, the other tires, or even the tread from the tire that
was saved — that the tire in question was defective and that any such defect was
the proximate cause of the crash and Mr. Koch’s injuries. See Bridgestone, 258
Ga. App. at 771 (noting that the plaintiff was also hampered by his loss of key
20 evidence). See also Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126
Ga. App. 471, 475 (191 SE2d 110) (1972) (“‘The mere fact of a tire blowout
does not demonstrate the manufacturer’s negligence, nor tend to establish that the
tire was defective. Blowouts can be attributed to myriad causes, including not
only the care with which the tires are maintained, but the conditions of the roads
over which they are driven and the happenstance striking of damaging objects.’”
(citation omitted)).
Indeed, the fact that lost evidence is often equally or even more important
to the case of the party that controlled it is why factfinders should not readily
presume that lost evidence was favorable to the opposing party absent a showing
that the evidence was lost intentionally to deprive the other party of its use in
litigation.6 Furthermore, as the Court of Appeals noted at the end of its opinion,
the fact that no sanctions are imposed for spoliation does not mean that Cooper
6 As the Advisory Committee on the Federal Rules of Civil Procedure has explained: Adverse-inference instructions were developed on the premise that a party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have. 2015 Advisory Committee Note.
21 Tire cannot present, as part of its defense, “the circumstances under which the tire
was saved and the remainder of the vehicle was destroyed.” Cooper Tire, 339
Ga. App. at 363 n.4. And finally, we note that spoliation can be an issue that
develops as a case progresses. If additional evidence emerges regarding the
circumstances under which Mr. Koch’s vehicle was destroyed, or if the court has
the opportunity at trial or otherwise to evaluate the credibility of the pertinent
witnesses, Cooper Tire might renew its spoliation motion. Phillips, 297 Ga. at
398 (“Although the spoliation issue may recur upon any retrial of the present
case, the evidence presented on this issue may be different, and the trial court
will have to exercise its discretion based on the evidence presented to it, guided
by the discussion in this opinion.”). We of course express no opinion on the
result if that occurs.
Judgment affirmed. All the Justices concur.
22 Decided March 15, 2018.
Certiorari to the Court of Appeals of Georgia — 339 Ga. App. 357.
Holland & Knight, Laurie W. Daniel; Bradley Arant Boult Cummings, Reed
T. Warburton, Scott B. Smith; Nall & Miller, George R. Neuhauser, for appellant.
Katherine L. McArthur, Caleb F. Walker, Laura K. Hinson Penn; Tracey
L. Dellacona, for appellees.
Burr & Forman, Ashby K. Fox, Forrest S. Latta, Louis G. Fiorilla; Alston
& Bird, Brian D. Boone; Shook, Hardy & Bacon, Leonard Searcy II, Philip S.
Goldberg, amici curiae.