rit to Appellants' claim that they did not know they had an affirmative duty to preserve the images of their hard drives as of the filing of the complaint. See generally Baxley, 282 Ga. at 314, 647 S.E.2d 29 (in dram shop lawsuit, “because [tavern's] manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence may have been captured as to whether [the customer] would soon be driving, a rebuttable presumption arose against [the tavern]”); The Kroger Co. v. Walters, 319 Ga.App. 52–56(1)(a), (b), 735 S.E.2d 99 (2012) (in slip-and-fall case, where patron was limping after he fell down, told co-manager of store within two weeks of the fall that he had an appointment with a doctor, and days later told the co-manager that he was having back and legs problems since the fall and needed help with his medical bills, trial court's finding that store had destroyed a video recording from the date and time of the incident by not preserving it was affirmed); Sentry Select Ins. Co. v. Treadwell, 318 Ga.App. 844–846(1), 847(2)(b), 734 S.E.2d 818 (2012) (in personal injury case, where evidence showed that shortly after the collision occurred the defendants were aware of contemplated litigation based on a letter from the plaintiffs' attorney, their own investigation, and their knowledge that all collisions of the kind which occurred resulted in claims, trial court's finding of spoliation of evidence was affirmed; testimony showed that dispatch records generated from an electronic, satellite-based system and maintained in a computer database were purged from the system).(b) Appellants fail to support their blanket assertions that mirror images of their hard drives never existed, and that it was not within their power or reach to create mirror images of their hard drives.
Nothing in the court's order shows that it considered a lesser sanction and found it insufficient under these facts. Cooper Tire & Rubber Co. v. Koch , 303 Ga. 336, 343 (2) (d), 812 S.E.2d 256 (2018) (reserving the harshest spoliation sanctions for those cases involving bad faith and resulting in incurable prejudice); Sentry Select Ins. Co. v. Treadwell , 318 Ga. App. 844, 849 (3), 734 S.E.2d 818 (2012) ("a trial court must fashion a remedy appropriate to its findings, and here the trial court relied in significant part on erroneous findings to impose the most extreme sanction"). The jury instruction the trial court crafted goes beyond simply demonstrating an adverse inference; rather, it instructs the jury that Anderson was speeding at the time of the accident, that he routinely did so, and that Cowan knew of this tendency.
[Cits.]” Sentry Select Ins. Co. v. Treadwell, 318 Ga.App. 844, 847(2)(c), 734 S.E.2d 818 (2012). Thus, as the trial court correctly recognized, the evidence in question never “existed as the pursuit was not recorded,” and therefore it could not have been spoliated.
See Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 09-61166-CIV, 2011 WL 1456029, at *11 (S.D. Fla. Apr. 5, 2011) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)). As to the former, the duty to preserve arises when litigation is reasonably foreseeable or pending, Graff, 310 F. App'x at 301, and it extends broadly to all documents "relevant" to discovery that exist at the time, see Marshall, 313 F.R.D. at 696 (citing Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 848 (2012)); Zubulake, 220 F.R.D. at 218; Point Blank Sols., 2011 WL 1456029, at *11-12 (citing Condit v. Dunne, 225 F.R.D. 100, 105 (S.D.N.Y. 2004)). When a corporate entity finds itself as a potential party to litigation, it need not preserve absolutely all information potentially relevant to future litigation; however, its "duty to preserve evidence [still] extends to those employees likely to have relevant information—the key players in the case, and applies to unique, relevant evidence that might be useful to the adversary."
Only those with possession, custody, and control may be sanctioned for their failure to preserve. Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012) ("[i]t is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party."); Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) ("it is essential that the evidence in question be within the party's control.") (cite omitted), cited in Watson v. Edelen, 76 F. Supp. 3d 1332, 1343 (N.D. Fla. 2015) ("For a spoliation sanction to apply, it is essential that the evidence in question be within the party's control, that is, the party actually destroyed or was privy to the destruction of the evidence.").
poliation occurred, Storey is not entitled to sanctions against the individual Effingham defendants, who could have done nothing to prevent or spur the destruction of these videos regardless of their own awareness of their importance. His motion (doc. 172) is thus DENIED in part, as to the individual Effingham defendants: Deputy Ashby Lee Zydonyk, Corporal Bryan Shearouse, Jailer Cora Mae Gains, Jailer Dorothy Hopf, Jailer Garett Buckles, Jailer Johnny Reinhart, Sergeant Layonya Cooper, Jailer Corporal Leslie Minor, Officer Paul Davis, Deputy Ryan Casey Williams, and Jail Officer Tiffany Tisby. C.f. Wilder v. Rockdale Cty., 2015 WL 1724596 at * 3 (N.D. Ga. April 15, 2015) (sanctions were not appropriate against a jail's health care provider for the destruction of a jail surveillance video because "[i]t is not clear what [the provider] could have done to get [the county] to preserve video[, and] there [was] no evidence that [the provider] played any role in deleting video footage."); Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012) ("[i]t is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party."). The Eleventh Circuit has discussed and relied on Georgia state law in spoliation cases, even though federal law applies to the issue of spoliation sanctions, because "Georgia state law is wholly consistent with federal spoliation principles."
"It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party." Wilder v. Rockdale Cty., No. 1:13-CV-2715-RWS, 2015 WL 1724596, at *3 (N.D. Ga. Apr. 15, 2015) (quoting Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012)). Here, it is undisputed that H&F leased the truck from Salem.
Regarding the first element, "[i]t is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party." Wilder v. Rockdale Cty., No. 1:13-CV-2715-RWS, 2015 WL 1724596, at *3 (N.D. Ga. Apr. 15, 2015) (quoting Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012)). "The Eleventh Circuit has discussed and relied on Georgia state law in spoliation cases, even though federal law applies to the issue of spoliation sanctions, because 'Georgia state law is wholly consistent with federal spoliation principles.'"
The question, then, is whether Defendant failed to preserve relevant information that existed when it learned of Plaintiff's EEOC Charge. See Fed. R. Civ. P. 37(e); In re Delta/AirTran, 770 F. Supp. 2d at 1307 ("[A] party's obligation to retain documents, including emails, is only triggered when litigation is reasonably anticipated."); Wilder v. Rockdale Cty., No. 1:13-cv-2715-RWS, 2015 WL 1724596, at *3 (N.D. Ga. Apr. 15, 2015) ("It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party.") (quoting Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012)); Zubulake, 220 F.R.D. at 218 ("A party or anticipated party must retain all relevant documents . . . in existence at the time the duty to preserve attaches, and any relevant documents created thereafter."). a. Pretreatments
"It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party." Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App. 2012). It is not clear what CorrectHealth could have done to get Rockdale County to preserve video beyond what it turned over to the GBI. Moreover, there is no evidence that CorrectHealth played any role in deleting video footage from the medical unit.