Monday, February 4, 2019

Was It A Bug Or An Underdeveloped Pea?

In a case involving an alleged insect in a lunch meal, the Georgia Supreme Court reversed spoliation sanctions

The incident

On September 24, 2008, Dee Dee Smith, an employee of Blue Cross Blue Shield of Georgia (“BCBS,” an affiliate of Anthem, formerly Wellpoint Companies, Inc.), ate lunch at the BCBS cafeteria in its Columbus office complex. Smith ordered a meal from one of the vendors, Captain Tom’s Seafood, owned by appellee Cheryl Wills. Smith observed what she believed to be an insect in her black-eyed peas. She took photographs of the supposed contaminant in the food container with her digital camera (the “original images”). She sent BCBS building superintendent Richard Andrews an email attaching the digital photographs allegedly showing the bug (the “Anthem email images”). She also submitted these same digital photographs to Walgreens (the “Walgreens digital images”), which made prints of the photographs that she hand-delivered to Andrews the next day.

The next day, Andrews sent an email informing employees that Captain Tom’s had been removed from the list of approved vendors for the BCBS cafeteria. That email was forwarded to a large number of BCBS employees – some 2,200 according to Wills’ counsel’s demand letter and the trial court’s order. News of the incident was also posted by someone on Facebook, and the story of the insect in the peas became widely known in the community.

Wills sought retraction and sued when it was not forthcoming

Wills claimed that, as a result of the wide distribution of the email, the business closed, she and her then-husband filed for bankruptcy, and they lost their home, cars, and savings.

The Walgreens photos were lost.

Wills asserts that she did not know that the lost Walgreens prints existed until Smith’s deposition on March 13, 2017. Wills further contends that the Anthem email images and the Walgreens digital images have been altered by adding in a “bug” or “maggot” and by showing the food container to be a different color than it actually is. Wills and two employees of Captain Tom’s testified that they examined the box returned by Smith, and that the object of which she complained was not an insect at all, but either a partial or underdeveloped pea. The witnesses testified that what they saw in other photographs printed from the Walgreens digital images was not what they saw when they inspected the contents of the box. The restaurant manager testified that a black and white version of the digital photograph she saw on Wills’ phone at the time of the incident did not show a bug. 

Wills sought sanctions

The trial court found that Andrews was aware of the litigation, but failed to preserve the lost Walgreens prints he received from Smith or give them to Anthem’s attorneys. The trial court further found that, “[i]n this age of rapid technological advances,” alteration is a distinct possibility, and the dispute could have been avoided had the lost Walgreens prints been preserved. While the trial court did not find that Andrews acted in bad faith, the trial court decided that it would give an instruction to the jury that “spoliation of evidence creates a rebuttable presumption that the evidence would have been harmful to the spoliator.”

The court here granted interlocutory review 

Viewed in the light most favorable to Anthem as the non-moving party, the record evidence shows the following. Smith used her digital camera to take several photographs of the alleged insect in her food. She uploaded these photographs to her home computer and emailed them to Andrews. The next day, Smith uploaded the digital photographs to the Walgreens website, printed the photographs, and gave the printed versions to Andrews. The Anthem email images and the Walgreens digital images are apparently both still available electronically. Further, while Smith initially expressed some confusion over the Health Department prints that were shown to her at her deposition, Smith has averred that the Walgreens digital images are identical to the lost Walgreens prints she took to Andrews. These lost Walgreens prints are the supposedly spoliated evidence at issue in this case.

Here, in awarding one of the most severe sanctions possible – a jury instruction on spoliation that allows an adverse inference to be made against Anthem – the trial court found that Andrews had a duty to preserve the lost Walgreens prints that Smith gave him. The trial court further found the loss of these prints to be “inexcusable” in that it prevented the trial court from assessing the veracity of Wills’ suggestion that the digital photographs had been altered. Moreover, in a departure from the general rule, the trial court imposed an extreme sanction absent any finding of intentionality, bad faith, or incurable prejudice. This was erroneous.


Generally speaking, absent other statutory or regulatory obligations, a party does not have to keep printed versions of ESI that is otherwise preserved and which contain the same or even less relevant information than the ESI, unless the existence of the printed version is independently relevant to the litigation.

Wills alleges that Anthem had a duty to retain the lost Walgreens prints because the digital photographs may have been tampered with. But the only window for alteration of the photographs was before Anthem received the email images. Thus, any alteration of the original digital images by Smith before she transmitted them to Anthem would not be attributable to Anthem. The trial court did not find, nor does the record before this Court support a finding, that the images Anthem received via email have ever been altered by Anthem from the form in which they were received.

(Mike Frisch)

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