For those who may be faced with litigation, it is very important to know what evidence spoliation is and how to avoid it. Spoliation is the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. The law does not simply frown upon the spoliation of evidence; it punishes it. Moreover, proof of spoliation raises “a rebuttable presumption against [the spoliator] that the evidence favored [the spoliator’s opponent], a fact rendering summary judgment inappropriate.” Baxley v. Hakiel Indus., Inc., 282 Ga. 312, 313, 647 S.E.2d 29, 30 (2007), citing Lane v. Montgomery Elevator Co., 225 Ga. App. 523, 525, 484 S.E.2d 249 (1997). Therefore, the spoliation of evidence could very well expand the cost and time associated with litigation for the spoliator.

It can often be difficult for a party to determine what evidence may be necessary or relevant to contemplated or pending litigation, especially when the evidence may consist of voluminous electronic records or when evidence is destroyed in the ordinary course of business. Nevertheless, it is important that those who may be facing litigation take steps to ensure that evidence is preserved because when spoliation does occur, the trial court will often consider what steps were taken to avoid the spoliation when issuing sanctions.

When it comes to spoliation, the trial court acts as the finder of fact on all issues. This includes determining whether spoliation occurred, whether the spoliator acted in bad faith, whether the spoliator was a party’s agent, the importance of the compromised evidence, and so on. Not only will the trial court act as the finder of fact, but the trial court will also have wide latitude to fashion sanctions on a case-by-case basis. Wide discretion is afforded the trial court in order to “control the behavior of litigants before them [and] to maintain the integrity of the judicial process.” Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (2005). Therefore, a trial court may choose from an array of sanctions, including striking pleadings or excluding testimony from the spoliator about the evidence.

There is little hope for a successful appeal for relief from a trial court’s spoliation sanction. Our appellate courts are reluctant to disturb a trial court’s decision to impose sanctions for spoliation, and “will not disturb a trial court’s imposition of sanctions for evidence spoliation unless the court abused its discretion. Moreover, [our appellate] courts will uphold a trial court’s finding of willful discovery abuse if there is any evidence to support it.” Bouve & Mohr, LLC, at 762, citing R.A. Siegel Co. v. Bowen, 246 Ga. App. 177 (2000).

In order to avoid becoming subject to spoliation sanctions, it is best to plan ahead. Companies that manage large volumes of documents or electronic information should spend time preparing a litigation hold strategy well before a litigation incident occurs. The strategy should consider how to prevent documents that would otherwise be destroyed in the ordinary course of business from being destroyed once litigation is contemplated. Additionally, employees should be well trained to retain and preserve evidence when litigation is contemplated. If a well-organized litigation hold policy is in place before a litigation event ever occurs, then it is less likely that spoliation will occur.

On September 1, 2011, the United States Consumer Product Safety Commission (“CPSC”) announced nine manufacturers and distributors had agreed to a voluntary recall of all pourable gel fuels they produced.  The recall came in response to dozens of reports of flash fires and burns caused by the gel fuel, including at least 2 deaths and 34 hospitalizations.  The pourable gel fuel can ignite unexpectedly and splatter onto people and objects nearby when it is poured into a firepot that is still burning.  Gel fuel fires have also occurred when the gel fuel was added to an extinguished firepot and through the explosion of a fuel gel bottle several feet away from any flame.

According to its website:

The U.S. Consumer Product Safety Commission is charged with protecting the public from unreasonable risks of injury or death from thousands of types of consumer products under the agency’s jurisdiction. The CPSC is committed to protecting consumers and families from products that pose a fire, electrical, chemical, or mechanical hazard or can injure children. The CPSC’s work to ensure the safety of consumer products – such as toys, cribs, power tools, cigarette lighters, and household chemicals – contributed significantly to the 30 percent decline in the rate of deaths and injuries associated with consumer products over the past 30 years.

To read the CPSC’s September 1, 2011 Recall Announcement, click here.  A report form CBSAtlanta.com can be found here.

In June, the CSPC announced that Napa Home and Garden had agreed to voluntarily recall their fuel gels.  Napa Home and Garden was joined in September by Bird Brain Inc. of Ypsilanti, Michigan, Bond Manufacturing of Antioch, California, Sunjel Company of Milwaukee, Fuel Barons Inc. of Lake Tahoe, Nevada, Lamplight Farms Inc. of Menomonee Falls, Wisconsin, Luminosities Inc. of St. Paul, Minnesota, Pacific Decor Ltd. Of Woodinville, Washington, Real Flame of Racine, Wisconsin, and Smart Solar USA of Oldsmar, Florida.  Without explanation, the Marshall Group of Elkhart, Indiana backed out of the recall agreement at the last minute, even though its gel fuels have been linked to horrific burn injuries.

Gel fuel burn victims can be found across the country, including two school teachers in Troup County, Georgia who were severely burned in separate gel fuel flash fires.  To read their story, click here.

Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. is vigorously representing a burn victim who was severely burned as a result of a fuel gel fire involving PatioGlo bio-fuel gel sold by The Marshall Group of Elkhart, Indiana and is actively investigating other gel fuel burn injury claims against other manufacturers.  If you or a loved one have been injured by exploding fuel gel in fire pots or other decorative lighting, contact us for a free evaluation of your claim.