In our digital world in which images and data can be stored almost without limit, courts are frequently having to address the problem when someone has an obligation to preserve an item for a potential lawsuit. The Georgia Court of Appeals recently addressed this recurring issue in Powers v. Southern Family Markets of Eastman, LLC, Case No. A12A2382 (decided March 18, 2013).

In a number of cases in recent years, the Georgia Court of Appeals has had to address when the party must preserve a recording taken by a video surveillance camera in a slip and fall case. The Powers case presented a familiar scenario. Ms. Powers went to the store to shop for groceries. When exiting the store, she slipped and fell. The store manager talked to Ms. Powers about the incident and then filled out an incident report, which included drawing a diagram of the incident and taking pictures of the area where the incident occurred. The store manager did not take any steps to preserve any of the video from its surveillance cameras, and the tapes were ultimately recorded over.

Several months later, Ms. Powers filed a negligence case against the store. In discovery, Ms. Powers sought the surveillance tapes from the date of the incident, and the store responded it did not have them. Ms. Powers asked the trial court to conclude that the store had improperly disposed of relevant evidence. In such circumstances, a plaintiff can have the trial court instruct the jury that the defendant improperly disposed of evidence and that the jury may infer that the evidence would have been favorable to the plaintiff’s case.

The legal term applied to this situation is “spoliation.” It is the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. In the Powers case, the trial court concluded there had been no spoliation of evidence, and the Court of Appeals affirmed. The Court held that the store was not on notice of potential litigation, even if it was on notice of potential liability for an accident. The Court held that the preparation of the incident report and the taking of photographs by the store manager were matters of routine, required when any slip and fall occurred on the store’s premises. The contemplation of liability was not the same as contemplation of litigation.

A recurring theme in cases such as Powers is that a defendant can often avoid a claim of having improperly destroyed evidence if it is following a routine practice. In Powers, the store had a routine practice of preparing incident reports. A store could have a routine practice of reusing video surveillance tapes after a specific number of days. Following that routine did not show an awareness that litigation was threatened. However, any potential defendant and its employees need to be alert to situations that take an incident from the realm of potential liability and into the realm of potential litigation. Did the injured party use the word claim or lawsuit? Does the injured party say that they need to “talk to their lawyer” or ask if the store was insured for the accident? A failure to be alert to such circumstances can turn an otherwise simple negligence case into a contentious drama over the alleged destruction of evidence.