spoliation presumption in Georgia

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2016Whitfield v. Tequila Mexican Restauran t No. 1, 323 Ga. App. 801, 807 (6) ( 748 SE2d 281 ) (2013) (“A spoliation claim cannot be pursued unless the spoliating party was under a duty to *360 preserve evidence.”), overruled on other grounds, Phillips, 297 Ga. at 398 (II) n. 10.

2016Whitfield v. Tequila Mexican Restauran t No. 1, 323 Ga. App. 801, 807 (6) ( 748 SE2d 281 ) (2013) (“A spoliation claim cannot be pursued unless the spoliating party was under a duty to *360 preserve evidence.”), overruled on other grounds, Phillips, 297 Ga. at 398 (II) n. 10.

2021USA, 345 Ga. App. 236 , 245 (6) ( 812 SE2d 582 ) (2018); see also Phillips v. Harmon, 297 Ga. 386, 397 (II) ( 774 SE2d 596 ) (2015).

2016Whitfield v. Tequila Mexican Restauran t No. 1, 323 Ga. App. 801, 807 (6) ( 748 SE2d 281 ) (2013) (“A spoliation claim cannot be pursued unless the spoliating party was under a duty to *360 preserve evidence.”), overruled on other grounds, Phillips, 297 Ga. at 398 (II) n. 10.

2011See Baxley v. Hakiel Indus., 282 Ga. 312, 313 ( 647 SE2d 29 ) (2007) (proof of spoliation raises rebuttable presumption against spoliator that evidence favored spoliator’s opponent). “[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted; emphasis supplied.) Silman v. Assocs.

2011See Baxley v. Hakiel Indus., 282 Ga. 312, 313 ( 647 SE2d 29 ) (2007) (proof of spoliation raises rebuttable presumption against spoliator that evidence favored spoliator’s opponent). “[S]poliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation and punctuation omitted; emphasis supplied.) Silman v. Assocs.

2012That court later clarified that Baxley did not expand the spoliation doctrine with this wording: “the phrase ‘potential for litigation’ from Baxley refers to litigation that is actually ‘contemplated or pending,’ and nothing more.” Silman, 286 Ga. at 28 .

2012Second, in Paggett, there is no evidence the plaintiff returned to the scene before the video was erased to explain that he had an appointment with a doctor nor evidence that the store later manipulated the aim of the relevant video camera; and there was 3 That court later clarified that Baxley did not expand the spoliation doctrine with this wording: “the phrase ‘potential for litigation from Baxley refers to litigation that is actually ‘contemplated or pending,’ and nothing more.” Silman, 286 Ga. at 28 . 9 evidence that the manager did not review the video, that the manager would not knowing

2025Appellant thus “cannot use the unresolved issue of spoliation to assert that genuine issues of material fact nonetheless exist.”27 Even without a spoliation presumption, Appellant contends that a jury, “after observing Arnsdorff wearing the keys for five hours at Fish Tales, could reasonably assume that Arnsdorff continued to wear her keys and wallet on her wrist while at Game Time[.]” “Guesses or speculation which raise merely a conjecture or possibility 25 Becks v. Pierce, 282 Ga. App. 229, 234 (1) ( 638 SE2d 390 ) (2006) (reversing denial of summary judgment because there was no evidence th

2025Appellant thus “cannot use the unresolved issue of spoliation to assert that genuine issues of material fact nonetheless exist.”27 Even without a spoliation presumption, Appellant contends that a jury, “after observing Arnsdorff wearing the keys for five hours at Fish Tales, could reasonably assume that Arnsdorff continued to wear her keys and wallet on her wrist while at Game Time[.]” “Guesses or speculation which raise merely a conjecture or possibility 25 Becks v. Pierce, 282 Ga. App. 229, 234 (1) ( 638 SE2d 390 ) (2006) (reversing denial of summary judgment because there was no evidence th

2025Appellant thus “cannot use the unresolved issue of spoliation to assert that genuine issues of material fact nonetheless exist.”27 Even without a spoliation presumption, Appellant contends that a jury, “after observing Arnsdorff wearing the keys for five hours at Fish Tales, could reasonably assume that Arnsdorff continued to wear her keys and wallet on her wrist while at Game Time[.]” “Guesses or speculation which raise merely a conjecture or possibility 25 Becks v. Pierce, 282 Ga. App. 229, 234 (1) ( 638 SE2d 390 ) (2006) (reversing denial of summary judgment because there was no evidence th

2025Appellant thus “cannot use the unresolved issue of spoliation to assert that genuine issues of material fact nonetheless exist.”27 Even without a spoliation presumption, Appellant contends that a jury, “after observing Arnsdorff wearing the keys for five hours at Fish Tales, could reasonably assume that Arnsdorff continued to wear her keys and wallet on her wrist while at Game Time[.]” “Guesses or speculation which raise merely a conjecture or possibility 25 Becks v. Pierce, 282 Ga. App. 229, 234 (1) ( 638 SE2d 390 ) (2006) (reversing denial of summary judgment because there was no evidence th

2024To the contrary, we have held that it is inappropriate to give a spoliation instruction in a criminal case, see Howard v. State, 307 Ga. 12, 18-19 & n.9 (834 SE2d 11) (2019), disapproved on other grounds by Johnson v. State, 315 Ga. 876, 889 n.11 (885 SE2d 725) (2023), even when the instruction is requested by the defendant, see Radford v. State, 251 Ga. 50, 53 (302 SE2d 555) (1983).

2024To the contrary, we have held that it is inappropriate to give a spoliation instruction in a criminal case, see Howard v. State, 307 Ga. 12, 18-19 & n.9 (834 SE2d 11) (2019), disapproved on other grounds by Johnson v. State, 315 Ga. 876, 889 n.11 (885 SE2d 725) (2023), even when the instruction is requested by the defendant, see Radford v. State, 251 Ga. 50, 53 (302 SE2d 555) (1983).

2023See Anthem Cos. v. Wills, 305 Ga. 313, 315-316 (2) ( 823 SE2d 781 ) (2019) (“The term spoliation is used to refer to the 9 destruction or failure to preserve evidence that is relevant to contemplated or pending litigation.

2023See Anthem Cos. v. Wills, 305 Ga. 313, 315-316 (2) ( 823 SE2d 781 ) (2019) (“The term spoliation is used to refer to the 9 destruction or failure to preserve evidence that is relevant to contemplated or pending litigation.

2021However, the expert only testified that it was “possible” to recover overwritten recordings, and he could not estimate whether it could have motion where the trial court did not hold an evidentiary hearing); Cooper Tire, 303 Ga. at 344 (3) (same). 7 The trial court noted that Michael Provatas’s transportation from the restaurant via an ambulance “might” have been sufficient to support a finding that Creek House had constructive notice of litigation, but the court proceeded to analyze the spoliation claim under the assumption that Creek House had actual notice the day it received the preservati

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2020See Wilkins v. City of Conyers, 347 Ga. App. 469, 473 ( 819 SE2d 885 ) (2018); Sheats v. Kroger Co., 342 Ga. App. 723, 726-727 (1) ( 805 SE2d 121 ) (2017); Jones v. Medical Center of Central Ga., 341 Ga. App. 888, 893 (4) ( 802 SE2d 286 ) (2017).

2017Pacheco v. Regal Cinemas, 311 Ga. App. 224, 225-226 (1) (b) ( 715 SE2d 728 ) (2011) (in the absence of legal authority supporting defendant’s theory of a requested spoliation charge, a trial court did not abuse its discretion in refusing the request).

2017Pacheco v. Regal Cinemas, 311 Ga. App. 224, 225-226 (1) (b) ( 715 SE2d 728 ) (2011) (in the absence of legal authority supporting defendant’s theory of a requested spoliation charge, a trial court did not abuse its discretion in refusing the request).

2011See Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) ( 694 SE2d 667 ) (2010) (trial court has wide discretion in resolving spoliation issues).

2011See Kitchens v. Brusman, 303 Ga. App. 703, 705 (1) ( 694 SE2d 667 ) (2010) (trial court has wide discretion in resolving spoliation issues).

2011See Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 106-107 ( 709 SE2d 309 ) (2011) (affirming trial court’s denial of spoliation remedies where, based on arguments made and evidence presented, court made explicit factual finding that spoliation had not occurred, and appellate record did not provide basis for reversing that factual finding).

2011See Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 106-107 ( 709 SE2d 309 ) (2011) (affirming trial court’s denial of spoliation remedies where, based on arguments made and evidence presented, court made explicit factual finding that spoliation had not occurred, and appellate record did not provide basis for reversing that factual finding).

2009The Silmans contend that, because the “potential for litigation” could exist even *28 where litigation is not actually “contemplated or pending,” the use of the phrase “potential for litigation” in Baxley expanded the spoliation standard from prior case law which stated that “[sjpoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bridgestone/ Firestone North American Tire v. Campbell Nissan North America, 258 Ga. App. 767, 768 ( 574 SE2d 923 ) (2002).

2009The Silmans contend that, because the “potential for litigation” could exist even *28 where litigation is not actually “contemplated or pending,” the use of the phrase “potential for litigation” in Baxley expanded the spoliation standard from prior case law which stated that “[sjpoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” Bridgestone/ Firestone North American Tire v. Campbell Nissan North America, 258 Ga. App. 767, 768 ( 574 SE2d 923 ) (2002).

2008(Citations, punctuation and footnote omitted.) Bowen, supra, 246 Ga. App. at 180 (2). (a) AMLI argues that the trial court erred in imposing spoliation sanctions because (1) GPC did not suffer prejudice but merely manufactured a spoliation claim, (2) any alleged prejudice could be cured, and (3) AMLI and its agents did not act in bad faith.

2008(Citations, punctuation and footnote omitted.) Bowen, supra, 246 Ga. App. at 180 (2). (a) AMLI argues that the trial court erred in imposing spoliation sanctions because (1) GPC did not suffer prejudice but merely manufactured a spoliation claim, (2) any alleged prejudice could be cured, and (3) AMLI and its agents did not act in bad faith.

2007We granted certiorari to consider whether a spoliation presumption should have been applied to the claims against Brewsters due to the destruction of the videotaped material from the night of the accident. 1 See id. at 95 (1). “ ‘Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.’ ” (Footnote omitted.) Bouvé & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (1) ( 618 SE2d 650 ) (2005).

2007We granted certiorari to consider whether a spoliation presumption should have been applied to the claims against Brewsters due to the destruction of the videotaped material from the night of the accident. 1 See id. at 95 (1). “ ‘Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.’ ” (Footnote omitted.) Bouvé & Mohr, LLC v. Banks, 274 Ga. App. 758, 762 (1) ( 618 SE2d 650 ) (2005).

2007Such conduct “ ‘creates the presumption that the evidence would have been harmful to the spoliator.’ ” (Footnote omitted.) American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 317 (2) (b) ( 605 SE2d 850 ) (2004).

2007Such conduct “ ‘creates the presumption that the evidence would have been harmful to the spoliator.’ ” (Footnote omitted.) American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 317 (2) (b) ( 605 SE2d 850 ) (2004).