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Lost Evidence not in Anticipation of Litigation Will not Support Spoliation Sanctions

On November 7, 2011, Brenda Sheats was injured while shopping at a Kroger grocery store when a glass bottle fell out of its package and struck Sheats’ foot. As a result of her injuries, Sheats sued The Kroger Co. and Clayton Distributing Company, Inc. (“Clayton”), asserting claims based upon product liability, ordinary negligence, and res ipsa loquitur. Sheats v. The Kroger Co., 2017 WL 3940993 (Ga. Ct. App. 2017). Sheats also filed a motion for spoliation sanctions, claiming that Kroger destroyed evidence that was essential to her complaint. Id.

After Sheats’ injury, Kroger’s store manager completed a “Customer Incident Report & Investigation Check List,” (the “Incident Report”) which included specific language that it was prepared in anticipation of litigation and was work product; however, despite that language, Kroger introduced the Incident Report during discovery. The manager also inspected the glass bottles’ packaging and determined that the glue did not sufficiently stick to the bottom flap of the package. The manager did not find the glue issue on any other packaging and put the packaging involved in Sheats’ incident in the trash. The manager later testified in an affidavit that he did not get the impression that Sheats would file a lawsuit. The trial court denied Sheats’ spoliation motion on the ground that she did not notify Kroger that she was contemplating litigation before the package was disposed. Id. at *2. The trial court then granted summary judgment to Kroger, finding that there was no evidence in the record that showed the package failure was foreseeable. Id.

“[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 also when a defendant “knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation.” Phillips v. Harmon, 297 Ga. 386 (2015). The Phillips Court set out a non-exclusive list of factors that may be considered to determine whether a defendant “knows or reasonably should know” that the plaintiff is contemplating litigation. Id. The factors include the type and extent of the injury, the extent to which fault is clear, the potential financial exposure, the course of conduct, the frequency of similar litigation, and the defendant’s response to the injury. Id. The Court of Appeals of Georgia held that the trial court did not clearly err when it determined that litigation was not reasonably foreseeable to Kroger, and affirmed the trial court’s denial of Sheats’ request for spoliation sanctions. Sheats at *6.

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