Cowan Sys., LLC v. Collier

361 Ga.App. 823

865 S.E.2d 619

COWAN SYSTEMS, LLC

v.COLLIER.

A21A1697

Court of Appeals of Georgia.

November 3, 2021

John David Dixon, Atlanta, Jason Shawn Stewart, for Appellant.

Jonathan Peter Hayes, Atlanta, for Appellee.

Markle, Judge.

After Larry Collier was injured when one of Cowan Systems, LLC's truck drivers struck his vehicle, Collier sued Cowan and the driver, James Anderson, and requested that they preserve evidence created by a tracking device on the truck. When Cowan could not produce the data because it had not been preserved, Collier requested a spoliation sanction. The trial court granted the motion and determined that it would instruct the jury that Anderson had been speeding and was in violation of hours of service regulations at the time of the accident; that Anderson had a pattern and practice of these behaviors; and that Cowan was aware of these violations. The trial court certified its order for immediate review, and we granted the interlocutory application. Cowan now appeals, arguing that the sanction imposed was unsupported by the trial court's findings. For the reasons that follow, we vacate the order awarding the presumptive jury instruction as a sanction, and remand the case for further proceedings.

"A trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse. Where a trial court makes findings of fact in ruling on a spoliation claim, this Court will uphold those findings if there is any evidence to support them, i.e., unless they are clearly erroneous." (Citation and punctuation omitted.) Reid v. Waste Indus. USA , 345 Ga. App. 236, 245 (6), 812 S.E.2d 582 (2018) ; see also Phillips v. Harmon , 297 Ga. 386, 397 (II), 774 S.E.2d 596 (2015). When the trial court imposes a sanction that is inconsistent with its factual findings, the trial court abuses its discretion. Anthem Cos. v. Wills , 305 Ga. 313, 316-317 (2), 823 S.E.2d 781 (2019).

So viewed, the record shows that Collier was driving to work in the early morning hours in July 2017 when he struck a deer that had entered the roadway. Anderson, who was a commercial truck driver for Cowan, was traveling behind Collier, and he struck the left rear side of Collier's car. Collier was injured when his car landed in a ditch. Collier believed Anderson was speeding and following too closely at the time of the accident. Anderson was cited for following too closely.

Four days after the accident, Collier's attorney sent Cowan a preservation letter, seeking to protect data collected by an OmniTRAC GPS system installed in Anderson's truck. The tracker collected speed and location data at certain times during the ride, depending on when the tracker "pinged." This data could have confirmed the tractor-trailer's speed and location at the time of the accident. Unfortunately, Cowan had only recently started installing the OmniTRAC system in its trucks, and it had not yet established a process for downloading and saving the electronic reports. Thus, when Cowan's legal staff received the preservation letter, they did not know the tracker was on the truck, nor did they know how to access and save the data. Cowan did preserve other tracking data in its logs that would have shown the truck's location at the time of the accident, but not its speed.

Collier filed suit against Cowan and Anderson. As to Cowan, Collier argued that it was vicariously liable for Anderson's speeding and driving in violation of the hours of service regulations applicable to commercial drivers, as well as negligent for the failure to train and supervise him, and for permitting him to drive with the knowledge that he violated the rules of the road and commercial driving regulations. Collier also sought punitive damages.¹

Collier then moved to sanction Cowan for spoliation of the electronic OmniTRAC data. He argued that the lost data was important to his claims of speeding and alleged violations of hours in service, as well as to the claim for punitive damages. In its response to the motion for spoliation sanctions, Cowan acknowledged that the data was important to Collier's case, but noted that some of the data was available from other reports, and it suggested that the trial court prohibit Anderson from testifying as a sanction to cure the prejudice of the lost evidence. Following a hearing, the trial court granted the motion, deciding that it would instruct the jury that Anderson was speeding and had violated time in service regulations at the time of the accident; he had a pattern or practice of speeding and violating time in service regulations; and that Cowan knew this information on the day of the accident. Cowan now appeals.

In related enumerations of error, Cowan argues that the trial court erred in fashioning its sanction because it improperly weighed the relevant factors, and there was no evidence Cowan acted in bad faith or intentionally spoliated the evidence.² We agree.

"Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation." (Citation omitted.) AMLI Residential Properties v. Ga. Power Co. , 293 Ga. App. 358, 361 (1), 667 S.E.2d 150 (2008). Once the trial court determines that spoliation occurred, a fact Cowan does not dispute here, it then considers the following factors in determining the appropriate penalty for spoliation:

(1) whether the party seeking sanctions was prejudiced as a result of the destroyed evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert testimony about the destroyed evidence was not excluded.

Creek House Seafood & Grill v. Provatas , 358 Ga. App. 727, –––– (2), 856 S.E.2d 335, 339 (2) (2021) ; see also MARTA v. Tyler , ––– Ga. App. ––––, 860 S.E.2d 224, 227 (2021).

To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. This is not an exhaustive list of sanctions a trial court may impose; rather, the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.

(Citation and punctuation omitted.) Wal-Mart Stores v. Lee , 290 Ga. App. 541, 545 (1), 659 S.E.2d 905 (2008).

Notably, however, an adverse jury instruction is a severe sanction that is generally appropriate only in response to the intentional destruction of material evidence. Creek House Seafood & Grill , 358 Ga. App. at 731 (2), 856 S.E.2d 335. Instead, "the loss of relevant evidence due to mere negligence normally should result in lesser sanctions, if any at all ... because information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have." (Citations and punctuation omitted.) Id. at 731 (2), 856 S.E.2d 335 ; see also Anthem Cos. , 305 Ga. at 316 (2), 823 S.E.2d 781 ; Wilkins v. City of Conyers , 347 Ga. App. 469, 473, 819 S.E.2d 885 (2018) ("the trial court may determine in its discretion that severe sanctions, such as an instruction to the jury to presume rebuttably that the evidence was adverse to the spoliating party's claim or defense, the entry of a default judgment, or the dismissal of the case, are appropriate. Significantly, however, those sanctions are reserved for exceptional cases—namely those in which the party lost or destroyed material evidence intentionally in bad faith and thereby prejudiced the opposing party in an uncurable way.") (citations and punctuation omitted).

Here, we must conclude that the trial court abused its discretion in imposing the presumptive jury instruction as its sanction. Although the trial court considered the relevant factors, it nevertheless imposed a sanction that was too harsh under the circumstances.

With regard to the first and third factors, there was no question that the...