The ANTHEM COMPANIES, INC. v. CHERYL WILLS
305 Ga. 313
Ga.2019Background
- Dee Dee Smith photographed what she believed was an insect in her cafeteria meal and emailed the digital photos to Richard Andrews (BCBS building superintendent) and to Walgreens, which produced printed copies that Smith gave to Andrews.
- Andrews emailed BCBS employees removing Captain Tom’s (owned by Cheryl Wills) as a vendor; the email circulated widely and allegedly harmed Wills’ business, leading to a defamation and tortious interference suit by Wills in 2008.
- Smith’s original camera file is unavailable; electronic copies of the photos remain on Walgreens’ and Anthem’s servers (the Anthem email images and Walgreens digital images). Andrews later lost the printed Walgreens photos he had received.
- Wills alleged the printed photos had been altered to add a ‘‘bug’’ and that loss of the prints was spoliation; Anthem contended the electronic images were unaltered and identical to the lost prints.
- The trial court granted Wills’ spoliation motion without an evidentiary hearing and ordered an adverse-jury-instruction presuming the lost prints would have been harmful to Anthem; the court found no bad faith but deemed the loss inexcusable.
- Anthem appealed; the Georgia Supreme Court reviewed whether spoliation sanctions were proper for loss of printed copies of ESI when identical electronic versions exist.
Issues
| Issue | Wills’ Argument | Anthem’s Argument | Held |
|---|---|---|---|
| Whether loss of printed photographs (prints of ESI) constitutes spoliation warranting an adverse inference | Lost prints were material and their absence prevented testing for alterations; Anthem had duty to preserve them | Prints were merely copies of ESI preserved electronically; loss did not prejudice Wills and was not intentional | Reversed: court abused discretion to impose adverse-inference instruction because electronic originals existed and no bad faith or incurable prejudice shown |
| Whether severe sanctions (adverse jury instruction) may be imposed absent bad faith or incurable prejudice | Severe sanction justified because loss prevented assessment of alleged tampering | Severe sanction improper where prints duplicated preserved ESI and no evidence prints were uniquely relevant | Held: Severe sanction improper; such sanctions reserved for bad-faith or exceptional cases |
| Whether a party must retain printed versions of ESI when electronic originals remain | Printed copies independently relevant because they might show alteration | No duty to keep prints that duplicate ESI unless prints contain unique information | Held: No general duty to retain prints of ESI; prints only required if independently relevant |
| Attribution of any alleged alteration to Anthem | Alteration could have occurred after Smith printed and before Andrews received prints, implicating Anthem for failing to preserve | Any tampering window was before Anthem received the email; no evidence Anthem altered or knew prints were uniquely relevant | Held: No evidence Anthem altered images; alteration (if any) not attributable to Anthem and trial court erred to assume otherwise |
Key Cases Cited
- Phillips v. Harmon, 297 Ga. 386 (discusses spoliation definition and presumption of harm)
- Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (explains severe spoliation sanctions reserved for bad-faith or exceptional cases)