In Phillips v. Harmon, Case No. S14G1868 (decided June 29, 2015), the Georgia Supreme Court rejected the bright line test formerly used when determining when a duty to preserve evidence begins.  There were a number of cases decided by the Georgia Court of Appeals that had held potential defendants did not have a duty to preserve evidence until potential plaintiffs gave notice of a possible claim.  We are now faced with the duty arising when litigation is pending or “reasonably foreseeable to that party.”

In addressing what factors will be evaluated in determining if litigation is reasonably foreseeable, the Court held that a defendant’s own actions could be relevant.  Constructive notice could be based upon other circumstances, 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.”

The Court also held that it may be appropriate to consider

“what the defendant did or did not do in response to the 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 litigation.”

Consistent with its approach in looking at the circumstances of the loss in question in determining duty, the Court added, in the ninth footnote, that not every incident or injury gives rise to a duty to preserve evidence:

“The defendant’s duty also does not arise merely because the defendant investigated the incident, because there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality assurance to preparation for possible litigation.”

This decision will clearly make it more difficult to address spoliation claims in Georgia.  We will need to be more diligent in affirmatively evaluating incidents to determine whether a duty to preserve evidence is triggered, and to be proactive in preserving or offering evidence for inspection.