297 Ga. 386
FINAL COPY


              S14G1868. PHILLIPS et al. v. HARMON et al.
              S14G1893. HARMON et al. v. PHILLIPS et al.
         S14G1895. HENRY MEDICAL CENTER v. PHILLIPS et al.


      HINES, Presiding Justice.

      This Court granted a writ of certiorari to the Court of Appeals in Phillips

Hector v. Harmon, 328 Ga. App. 686 (760 SE2d 235) (2014), to determine if

that Court properly held in this medical malpractice action: (1) that the trial

court’s communication to the jury outside the presence of counsel and the

parties was reversible error (S14G1893; S14G1895), and (2) that the trial court

did not abuse its discretion in its refusal to give plaintiffs’ requested jury charge

on spoliation (S14G1868). For the reasons that follow, we affirm in part and

reverse in part the judgment of the Court of Appeals, and remand the case to that

Court.

      Lee V. Phillips IV (“Phillips”) by and through his mother Santhonia

Hector (“Hector”), and Hector individually (collectively “Plaintiffs”), brought

this medical malpractice action against certified nurse midwife (“CNM”) Marcia

R. Harmon, Deborah E. Haynes, M.D., Eagles Landing OB-GYN Associates,
P.C., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical Center,

Inc. (collectively “Defendants”). Plaintiffs alleged that Defendants’ negligence

caused Phillips to suffer oxygen deprivation shortly before birth, resulting in

severe, permanent neurological injuries, including spastic quadriplegia,

blindness, and an inability to speak.

       The case went to trial before a jury on August 20, 2012, and the jury

returned a verdict for the Defendants on September 6, 2012, after approximately

one-and-a-half days of deliberations. Plaintiffs filed a motion for a new trial,

alleging that the trial court erred by engaging in a communication with the jury

when neither the parties nor their attorneys were present, and by refusing to give

their requested jury charge on the spoliation of evidence. The trial court denied

the motion, and Plaintiffs appealed to the Court of Appeals.1

       The Court of Appeals concluded that the trial court did not abuse its

discretion in refusing to give Plaintiffs' requested charge on spoliation of

evidence; however, it reversed the trial court’s denial of Plaintiffs’ motion for



       1
         In their appeal to the Court of Appeals, Plaintiffs raised the additional claim that the
Defendants improperly introduced evidence of collateral source benefits; however, the Court of
Appeals found it unnecessary to consider such claim. In any event, the issue is not within the
confines of this Court’s grant of certiorari.

                                               2
new trial after determining that Plaintiffs were entitled to a new trial because the

trial court responded to a note from the jury during the course of their

deliberations without ever advising the parties or their counsel that the

communication had taken place.

                I. S14G1893; S14G1895. Communication with the Jury.

        The facts as found by the Court of Appeals with regard to the

communication with the jury are the following. Several weeks after the jury

verdict, two jurors contacted Plaintiffs’ counsel regarding possible juror

misconduct.2 In that conversation, Plaintiffs’ counsel learned for the first time

that the trial judge had responded to a note from the jury without disclosing to

the parties or their counsel the contents of the note or his response. Plaintiffs’

counsel obtained affidavits from these two jurors, which affidavits averred that,

on the second day of deliberations, the jury sent a note to the trial judge

“indicating that [they] were not able to reach a unanimous verdict,” and that the

judge sent back a note instructing the jury to “continue deliberating.”



        2
         These jurors were concerned that another juror might have been sending and receiving text
messages during deliberations. The Court of Appeals found that this issue was originally raised by
Plaintiffs in their motion for a new trial, but that they did not assert any claim of error in this regard
on appeal to the Court of Appeals.

                                                    3
      Subsequently, Plaintiffs’ counsel asked the trial judge to take measures to

see that both the jury note and the judge’s responsive note were filed with the

clerk of court. After realizing that the court reporter did not have a copy of the

jury’s note, the trial judge, without holding a hearing or seeking any input from

the parties’ counsel, entered an order supplementing the record pursuant to

OCGA § 5-6-41 (d).3 The order recited that four notes were delivered to the

court during deliberations and that three of them were preserved and made part

of the record, but that the note regarding the jury's inability to reach a

unanimous verdict was not one of them. The order stated that the missing note

read, “What happens if we can’t reach a unanimous verdict,” and was delivered

      3
          OCGA § 5-6-41 (d) provides:
             Where a trial in any civil or criminal case is reported by a court reporter, all
             motions, colloquies, objections, rulings, evidence, whether admitted or
             stricken on objection or otherwise, copies or summaries of all documentary
             evidence, the charge of the court, and all other proceedings which may be
             called in question on appeal or other posttrial procedure shall be reported;
             and, where the report is transcribed, all such matters shall be included in the
             written transcript, it being the intention of this article that all these matters
             appear in the record. Where matters occur which were not reported, such as
             objections to oral argument, misconduct of the jury, or other like instances,
             the court, upon motion of either party, shall require that a transcript of these
             matters be made and included as a part of the record. The transcript of
             proceedings shall not be reduced to narrative form unless by agreement of
             counsel; but, where the trial is not reported or the transcript of the
             proceedings for any other reason is not available and the evidence is prepared
             from recollection, it may be prepared in narrative form.



                                                  4
to the court immediately after lunch recess on the first day of jury deliberations;

due to the fact that the note did not actually indicate that the jury was “hung,”

and in view of the short amount of time that the jury had been deliberating after

the lengthy trial, the trial judge did not believe it was necessary to consult with

counsel about his response; therefore, the trial judge wrote on the same piece of

paper, “please continue deliberating,” and had the bailiff return the note to the

jury. The trial judge also stated that the note had remained with the jury, and

presumably was destroyed along with the jurors’ personal notes, as instructed

by the bailiff after return of the verdict.

      Plaintiffs moved to recuse or disqualify the trial judge due to the perceived

conflict between the jurors’ affidavits and the trial judge’s order supplementing

the record. The trial judge granted the motion, and the case was reassigned.

Following a hearing on Plaintiffs’ motion for new trial, the assigned judge

rejected Plaintiffs’ claim that the trial judge’s communication with the jury

outside the presence of Plaintiffs or counsel was per se reversible error, and

concluded that Plaintiffs were not entitled to a new trial because the note was

not impermissibly misleading or coercive. However, in denying the motion for

new trial, the trial court noted that the evidence in the case was “close” and

                                          5
would have supported a verdict for either Plaintiffs or Defendants.

       After a lengthy analysis which examined the right of a natural party to be

present in the courtroom during trial, and the applicability of a presumption of

prejudice or harmless error review, the Court of Appeals concluded that the

particular and unique circumstances surrounding the communication in this case

warranted a new trial. And, the Court was correct to do so.

                                       A. Right to be Present

       As the Court of Appeals properly noted, in Kesterson v. Jarrett, 291 Ga.

380 (728 SE2d 557) (2012), this Court steadfastly reaffirmed the right of a

natural party to be present in the courtroom when the party’s case is being tried

as such right,

               is deeply rooted in the law of this Nation and, if anything,
               even more embedded in the law of this State. It has been
               treated as a component of the due process of law in both
               criminal and civil cases since the early decisions of this
               Court. The right to be present is also reflected textually in our
               State Constitution, in the provision guaranteeing to every
               person “the right to prosecute or defend, either in person or
               by an attorney, that person's own cause in any of the courts of
               this state.” Ga. Const. of 1983, Art. I, Sec. I, Par. XII.4

       4
          Ga. Const. of 1983, Art. I, Sec. I, Par. XII provides: “No person shall be deprived of the
right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the
courts of this state.”

                                                  6
Id. at 384 (2) (a) (Internal citations omitted.) Kesterson was also a medical

malpractice case in which it was alleged that a child suffered neurological

injuries caused by oxygen deprivation shortly before birth as the result of the

defendant medical providers’ negligence in failing to timely recognize signs of

fetal distress. The trial court excluded the young child from most of the liability

phase of the trial of the lawsuit after the defendants moved to so exclude the

child from the courtroom on the basis that the child’s presence would be

prejudicial to them. Id. at 382 (1). The Court of Appeals affirmed that ruling

after applying a test which gave the trial court discretion to exclude a civil party

when the party's physical and mental condition might generate sympathy from

the jury and the party’s mental condition precludes meaningful participation in

and understanding of the proceedings. See Kesterson v. Jarrett, 307 Ga. App.

244, 248-251 (1) (b) (704 SE2d 878) (2010). So, the issue before this Court on

certiorari was whether a party might be denied the right to be present in court

during the trial of the party’s case and excluded from the courtroom because the

party’s physical and mental condition might evoke undue sympathy from the



                                         7
jury, and thereby improperly prejudice the other side. Kesterson, 291 Ga. at

380-381. This Court reversed and remanded the case to the Court of Appeals

after concluding that a party could not be excluded from the party’s own trial

simply because the party’s physical and mental condition might evoke

sympathy, and that there were other means to ensure a fair trial without

infringing on the party's right to be present. Id. at 381. Thus, in those

circumstances the right to be present was deemed paramount.

      Kesterson, however, did not directly address the situation at bar, that is,

the right of a party in a civil case to be present when the trial judge engages in

communications with the jury. But, as a general matter, parties to civil actions

in Georgia have the right to be present at all stages of the trial of the action.

Willingham v. Willingham, 192 Ga. 405, 408 (1) (15 SE2d 514) (1941); Cox v.

Yates, 96 Ga. App. 466 (3) (100 SE2d 649) (1957). And, in a civil proceeding

this is so in order, inter alia, that the party be able to render assistance to his

counsel as developments unfold. Mays v. Tharpe & Brooks, Inc., 143 Ga. App.

815, 816 (240 SE2d 159) (1977).

      As noted by the Court of Appeals, the right to be present in the context of

communications between the trial judge and jury has been clearly determined

                                        8
in criminal cases. In Hanifa v. State, 269 Ga. 797, 806-808 (6) (505 SE2d 731)

(1998), this Court squarely addressed the right of the criminal defendant to be

present during the trial judge’s communications with the jury. Defendant

Hanifa contended that the trial judge committed reversible error when the judge

suspended the State's closing argument, left the bench, and returned some time

later, informing counsel and their clients that the judge had been to “visit with

the jury” whose condition the judge described as “fragile.” Id. at 806 (6). Even

though this Court concluded that Hanifa waived the right to appellate review of

this issue because she failed to object or seek a mistrial after being informed by

the trial judge of the communication with the jury, this Court nevertheless

unequivocally affirmed a criminal defendant's “right to be present, and see and

hear, all the proceedings which are had against him on the trial before the

Court,” and that “[a] colloquy between the trial judge and the jury is a part of the

proceedings to which the defendant and counsel are entitled to be present.” Id.

at 807 (6) (Punctuation omitted.) In so doing, this Court strongly admonished

trial judges about engaging in such communications with the jury outside the

presence of the parties and their counsel, stating,

      [u]questionably the trial judge should not in any manner

                                         9
      communicate with the jury about the case, in the absence of the
      accused and his counsel, pending the trial; and the better practice is
      for the judge to have no communication with the jury on any subject
      except through the medium of the sworn bailiff in charge of the
      jury; and the communication should be restricted, in the absence of
      the accused and his counsel, to matters relating to the comfort and
      convenience of the jury. There should be no communication which
      would tend in any manner to prejudice the accused . . . ; and unless
      the character of the communication clearly shows that it could not
      have been prejudicial to the accused, the presumption of law would
      be that it was prejudicial. . . . We state again: “all communications
      with the jury are to be discouraged except in open court with all
      persons present. . . .”


Hanifa at 807 (6) (Citation omitted.) Indeed, “[a] trial court's communication

with a jury on substantive matters is a part of the proceedings to which the

defendant and counsel are entitled to be present.” Lowery v. State, 282 Ga. 68,

73 (4) (b) (646 SE2d 67) (2007). And, a jury communication regarding its

inability to reach a verdict has been deemed a substantive matter for the purpose

of a defendant’s right to be present. Id. at 74 (4) (b) (i); accord Wells v. State,

297 Ga. App. 153, 159-160 (2) (676 SE2d 821) (2009).

      This Court cannot sanction communications of a substantive nature

between a trial judge and a jury outside the presence of the defendant and

counsel in a criminal trial, and it should not do so in a civil trial as such actions


                                         10
are no less a violation of a party’s right to be present during trial. Furthermore,

as this Court expressed in Kesterson:

      There is . . . a personal element to the right to be present. The right
      is based not only on what the party can do to the case, but on what
      the case will do to the party. It is the party's interests that are being
      determined by the jury and the judge, and it is the party's life that
      will be directly affected by the outcome of the case.

291 Ga. at 392 (2) (f) (emphasis omitted). The Court of Appeals correctly
concluded that the right to be present in regard to the jury communication was

totally denied in this case, and that although the duration of the exclusion was

briefer than in Kesterson, the present violation was “more absolute” in that,

unlike in Kesterson, where the plaintiff had her attorneys present and

representing her during trial, these Plaintiffs were wholly without any

representation or input during the trial court's communication with the jury.

Phillips, 328 Ga. App. at 691 (1) (b).

                                     B. Harm

      The Court of Appeals held that this violation of Plaintiffs’ right to be

present at trial required reversal and a new trial; it did so both by presuming

prejudice as a matter of law, as has been done in criminal cases involving jury

communications that violated a defendant’s right to be present except where


                                         11
“‘the character of the communication clearly shows that it could not have been

prejudicial to the accused,’” Hanifa at 807 (6) (citation omitted), and

alternatively, by undertaking a harmless-error analysis generally applicable to

errors in civil cases as set forth in OCGA § 9-11-61.5 It is unnecessary for this

Court to decide whether the criminal precedents regarding the presumption of

prejudice should be extended into the civil arena in a case such as this because

we agree with the Court of Appeals that, under the unique circumstances of this

case, the error was harmful.

       It has been aptly observed that OCGA § 9-11-61 “exhorts” the appellate

courts to disregard errors or defects in the proceeding which do not affect the

substantial rights of the parties, but leaves open the question of how to

determine when an error affected the parties' “substantial rights” or that the

failure to correct the error was “inconsistent with substantial justice.” Thomas

       5
         OCGA § 9-11-61, which is part of the Civil Practice Act and to which there is no
counterpart in the Criminal Code, provides:
       No error in either the admission or the exclusion of evidence and no error or defect in any
       ruling or order or in anything done or omitted by the court or by any of the parties is ground
       for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise
       disturbing a judgment or order, unless refusal to take such action appears to the court
       inconsistent with substantial justice. The court at every stage of the proceeding must
       disregard any error or defect in the proceeding which does not affect the substantial rights
       of the parties.



                                                  12
v. Emory Clinic, 321 Ga. App. 457, 460 (1) (d) (739 SE2d 138) (2013) (physical

precedent only). Indeed, “whether an error requires reversal depends on the

nature of the error and the importance of the issue to which it applies.” Id. at

461 (1). As the Court of Appeals observed in the present case,

      a critical difference exists between many of the cases in which our
      appellate courts have deemed a right to be present violation
      harmless or waived and the case at hand, which is that those
      communications were in fact disclosed to the defendant and/or his
      attorney prior to the time the jury returned its verdict. Depending on
      the time of this disclosure, this afforded the defendant or his
      counsel the opportunity to have input concerning the court's
      response, request that the court query the jury about the potential
      deadlock, object, move for a mistrial, or at a minimum, and
      importantly here, preserve a record of the communication. And if
      the defendant or his attorney was told of the communication prior
      to the return of the verdict and they failed to act, a waiver of the
      right to be present violation would occur.

Phillips, 328 Ga. App. at 693-694 (1) (d) (Citations omitted.) In this case, upon

learning of the communication, Plaintiffs' counsel took diligent action to have

the communication made a part of the record, but through no fault of Plaintiffs

or counsel, was unable to secure the actual communication. Thus, as the Court

of Appeals stated,

      this case presents one of those rare circumstances where the party
      who asserts they have been aggrieved has been effectively
      precluded from demonstrating harm. Such an inability of a party to

                                       13
         prove they were harmed by an ex parte judge/jury communication
         obviously “affect[s] the substantial rights.”

Phillips, 328 Ga. App. at 696-697 (1) (e).6

         In sum, the unique circumstances of this case, which include the untimely

and serendipitous disclosure of the communication to Plaintiffs or their counsel;

Plaintiffs’ inability to make the actual note or response a part of the record; the

differing recollections about the nature and timing of the communication; the

failure to resolve the perceived conflicts; and the inability to make a

determination that a verdict for Defendants was demanded, regardless of any

effect of the communication on the jury, support Plaintiffs’ entitlement to a new

trial.

                                II. S14G1868. Spoliation.

         The term “spoliation” is used to refer to “the destruction or failure to

preserve evidence” that is relevant to “contemplated or pending litigation.”



         6
          As the Court of Appeals noted, there is no reason to question the trial judge’s good faith in
attempting to supplement the record pursuant to OCGA § 5-6-41 (d); however, by its express terms
that section does not lend itself to the present circumstances in which there are apparent
discrepancies between the recollections of the jury and the trial judge about a communication that
occurred between them. And, although subsection (g) of the statute makes the trial judge the final
arbiter in a dispute between the parties in regard to the correctness of a transcript prepared from
recollection, this statutory provision does not address this situation in which there is apparent conflict
between the recollections of the trial judge and jurors.

                                                   14
Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). Such

conduct may give rise to the rebuttable presumption that the evidence would

have been harmful to the spoliator. Lane v. Montgomery Elevator Co., 225 Ga.

App. 523, 525 (1) (484 SE2d 249) (1997). See OCGA § 24-14-227 (formerly

OCGA § 24-4-22). However, in order for the injured party to pursue a remedy

for spoliation, the spoliating party must have been under a duty to preserve the

evidence at issue. Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App.

801, 807 (6) (748 SE2d 281) (2013).

      The destroyed evidence at issue in this case was printed paper strips of the

electronic monitoring of Phillips’s fetal heart rate. Plaintiffs alleged that

Defendants acted negligently in monitoring and responding to Phillips’s heart

decelerations and periods of bradycardia, which are signs of fetal distress.

Acute, sustained bradycardia can cause brain damage as a result of oxygen

deprivation, and generally the longer it lasts, the greater the potential brain

damage.

      7
        OCGA § 24-14-22 provides:
               If a party has evidence in such party's power and within such party's reach by which
      he or she may repel a claim or charge against him or her but omits to produce it or if such
      party has more certain and satisfactory evidence in his or her power but relies on that which
      is of a weaker and inferior nature, a presumption arises that the charge or claim against such
      party is well founded; but this presumption may be rebutted.

                                               15
      At the time of Phillips’s birth, the medical records at Henry Medical

Center were maintained electronically. Nevertheless, the nurses often took notes

on paper fetal monitor strips during labor and delivery. And even though these

strips were not considered a part of the official record, the nurses would refer

back to their notes to complete the official record. Henry Medical Center

maintained the strips for 30 days post-delivery, and then would routinely destroy

them. The strips at issue were destroyed pursuant to this procedure.

      There was some evidence in this case that there were nursing notations on

the printed strips, not part of the electronic record, which were relevant, inter

alia, to the timeliness of medical response to Phillips’s signs of fetal distress,

and thus, relevant and arguably critical to Plaintiffs’ claim of Defendants’

failure to adhere to the appropriate standard of care. Plaintiffs requested that the

following charge be given to the jury:

      Defendant Henry Medical Center destroyed the printed paper copy of the
      fetal heart rate tracing sometime after the delivery of Lee V. Phillips, IV.
      At the time Defendant Henry Medical Center destroyed the printed paper
      copy of the fetal heart rate tracing, Defendant Henry Medical Center was
      aware of the potential for litigation. The Plaintiffs are entitled to a
      presumption that the printed paper copy of the fetal heart rate tracing,
      which contained the handwritten notes that [nurse] Kim Jones made
      during the labor at issue in this case, would have been prejudicial to
      Defendant Henry Medical Center. The presumption may be rebutted by

                                         16
       Defendant Henry Medical Center.


       The trial court declined to give the charge, after finding that Defendants

had “no knowledge or notice of potential litigation”;8 however, it permitted the

parties to present evidence and argument concerning the notes made on the fetal

monitor paper strips, the use of the strips in creating the official medical record,

and the destruction of the strips.

       On appeal to the Court of Appeals, Plaintiffs maintained that it was error

to refuse to give its requested charge because Henry Medical Center’s actions

after Phillips's birth showed that it was contemplating litigation regarding the

delivery at the time it destroyed the records. In support, Plaintiffs cited Henry

Medical Center’s triggering of its Sentinel Events/Medical Errors/Disclosures

policies and procedures (“Sentinel Events Policies”) immediately after Phillips's

birth, and in accordance with such policies, its launching of an internal

investigation, which involved questioning of involved personnel, its subsequent

notification to its insurance carrier, and its contacting legal counsel shortly

thereafter. Plaintiffs argued that once the Sentinel Events Policies were

       8
        The trial court made statements to the effect that the law would not permit it to give a
charge on spoliation as notice of a claim or litigation had not been given the Defendants.

                                              17
triggered, Henry Medical Center was required to “obtain and/or preserve

evidence, as appropriate (for example, photographs, equipment, supplies, etc.)”

and to protect “[t]he medical record and other potential evidence . . . as needed

in anticipation of possible litigation.”      Plaintiffs further urged that they

presented evidence that risk management would “sometimes” request that the

fetal monitor strips be preserved, although no such request was made in this

case.

        The Court of Appeals concluded that Henry Medical Center did not have

notice of “pending or contemplated” litigation at the time of its destruction of

the paper fetal monitor strips, and consequently, that it was not an abuse of the

trial court’s discretion to refuse to give Plaintiffs' requested charge on spoliation

of evidence. In so doing, the Court of Appeals cited its own precedent for the

proposition that merely launching an internal investigation and taking some

steps pursuant to company policies do not, without more, equate to notice that

litigation is contemplated or pending, and that the mere fact that someone is

injured, without more, is not notice that the injured party is contemplating

litigation sufficient to automatically trigger the rules of spoliation. Phillips, 328

Ga. App. at 699-700 (2). It also concluded that this Court’s decision in Baxley

                                         18
v. Hakiel Indus., 282 Ga. 312 (647 SE2d 29) (2007), as further discussed in

Silman v. Assoc. Bellemeade, supra at 28, did not mandate a finding of

spoliation in that the phrase “potential for litigation” used in Baxley refers to

litigation that is actually “contemplated or pending,” and “nothing more.” 328

Ga. App. at 701. But, the Court of Appeals’s analysis and conclusion miss the

mark. Although the Court of Appeals was correct in concluding that Silman

clarified that in saying “potential for litigation” Baxley meant “contemplated or

pending” litigation, it erred in interpreting that standard, and consequently, in

applying it to the facts of this case.

      Logically, the duty to preserve relevant evidence must be viewed from the

perspective of the party with control of the evidence and is triggered not only

when litigation is pending but when it is reasonably foreseeable to that party.

See Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301 (11th Cir. 2009); West

v. Goodyear Tire & Rubber Co., 167 F3d 776, 779 (2d Cir. 1999) (Spoliation

is the destruction or significant alteration of evidence, or the failure to preserve

property for another's use as evidence in litigation that is pending or reasonably

foreseeable.) However, to say merely that the duty arises when litigation is

“contemplated or pending” does not answer the question as to which party is

                                         19
doing the “contemplating,” that is, anticipating the litigation.

      In regard to the injured party, usually the plaintiff, the duty arises when

that party contemplates litigation, inasmuch as litigation is obviously forseeable

to the plaintiff at that point. As to the opposing party, usually the defendant, the

duty arises when it knows or reasonably should know that the injured party, the

plaintiff, is in fact contemplating litigation, which the cases often refer to in

terms of “notice” to the defendant. See, e.g., Hand v. South Georgia Urology

Center, P.C., 332 Ga. App. 148 (769 SE2d 814) (2015); Allen v. Zion Baptist

Church of Braselton, 328 Ga. App. 208, 216-217 (3) (761 SE2d 605) (2014).

Certainly, the defendant’s knowledge that the plaintiff is contemplating

litigation may come when the plaintiff provides actual or express notice of

litigation. And, such notice can be constructive as well as actual. Indeed,

Baxley correctly identified two concepts: that notice in the context of spoliation

can be constructive and that actual notice of contemplated litigation from the

plaintiff to the defendant is not the only way that the defendant may reasonably

foresee litigation, but rather, that the defendant’s actions may be relevant to that




                                        20
determination, that is, that such actions may demonstrate constructive notice.9

       Notice that the plaintiff is contemplating litigation may also be derived

from, i.e., litigation may be reasonably foreseeable to the defendant based on,

other circumstances, such as the type and extent of the injury; the extent to

which fault for the injury is clear; the potential financial exposure if faced with

a finding of liability; the relationship and course of conduct between the parties,

including past litigation or threatened litigation; and the frequency with which

litigation occurs in similar circumstances. Thus, it may be appropriate to

consider, in determining whether the defendant actually did or reasonably

should have foreseen litigation by the plaintiff, not only what the plaintiff did

or did not do after the injury and before the evidence in question was lost or

destroyed, but also what the defendant did or did not do in response to the

injury, including the initiation and extent of any internal investigation, the

reasons for any notification of counsel and insurers, and any expression by the


       9
         The full facts of Baxley may not be clear from the face of the opinion, but Baxley should
not be read to hold that merely an injury and subsequent questioning of employees by a manager
about what happened regarding the injurious event triggers the duty to preserve evidence. The
defendant’s duty also does not arise merely because the defendant investigated the incident, because
there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality
assurance to preparation for possible litigation.


                                                 21
defendant that it was acting in anticipation of litigation. It is undisputed that at

the time the strips were destroyed, Henry Medical Center had not received

express or actual notice from Plaintiffs that litigation was being planned,

pursued, or pending. Again, the duty to preserve relevant evidence arises when

litigation is reasonably foreseeable to the party in control of that evidence, and

thus while actual notice of litigation from the plaintiffs would clearly make such

litigation foreseeable, other circumstances may show that the defendant/alleged

tortfeasor actually or reasonably should have anticipated litigation, even without

notice of a claim being provided by the injured party/plaintiff.

      Certainly a trial court has wide discretion in adjudicating spoliation issues,

and such discretion will not be disturbed absent abuse. Hand, 332 Ga. App. at

156. However, an appellate court cannot affirm a trial court’s reasoning which

is based upon an erroneous legal theory. Amin v. Guruom, 280 Ga. 873, 875

(635 SE2d 105) (2006).

      Here, the trial court’s exercise of discretion in ruling that Defendants had

no duty to preserve the paper fetal monitor strips, and the Court of Appeals’s

upholding of that ruling, appear to rest on the legally incorrect premise that a

defendant’s duty to preserve evidence required notice of a claim or litigation

                                        22
from the plaintiff, i.e., actual notice, without regard to other circumstances, such

as the type and extent of the injuries (severe injuries to a newborn child after an

unexpectedly difficult delivery), the high damages that can flow from such

injuries, the frequency of litigation in these circumstances, and the defendant’s

internal investigation and notification to its counsel and insurer. Consequently,

the judgment of the Court of Appeals in regard to the spoliation issue cannot be

upheld, and to the extent that the Court of Appeals cases dealing with the issue

of spoliation may be read as endorsing the erroneous analysis used in this case,

they are hereby disapproved in that regard.10

       Although the spoliation issue may recur upon any retrial of the present

case, the evidence presented on this issue may be different, and the trial court

will have to exercise its discretion based on the evidence presented to it, guided




       10
          Such cases include, but are not limited to, Hand v. South Georgia Urology Center, P.C.,
332 Ga. App. at 155 (2); Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. at 806-808
(2); Clayton County v. Austin-Powell, 321 Ga. App. 12, 16-17 (2) (740 SE2d 831) (2013); Powers
v. Southern Family Markets of Eastman, LLC, 320 Ga. App. 478, 479-480 (1) (740 SE2d 214)
(2013); Flores v. Exprezit!A Stores 98-Georgia, LLC, 314 Ga. App. 570, 573 (2) (724 SE2d 870)
(2012); Paggett v. Kroger Co., 311 Ga. App. 690, 692-693 (2) (716 SE2d 792) (2011); Craig v.
Bailey Bros. Realty, 304 Ga. App. 794, 797 (1) (697 SE2d 888) (2010).



                                               23
by the discussion in this opinion.11 It should also be noted that this Court has

held that a rebuttable presumption or adverse inference jury instruction such as

the one requested in this case is to be given as a remedy for spoliation of

evidence “only in exceptional cases,” that “the greatest caution must be

exercised in its application,” and that “[e]ach case must stand upon its own

particular facts.” Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31 (174 SE

708) (1934). And, the Court of Appeals has explained that in considering the

giving of such an instruction, the trial court should consider both prejudice to

the party seeking the charge and “whether the party who destroyed the evidence

acted in good or bad faith.” Johnson v. Riverdale Anesthesia Assocs., 249 Ga.

App. 152, 154 (2) (547 SE2d 347) (2001). The good or bad faith of the party

      is a relevant consideration because one of the rationales for the
      presumption is that it deter[s] parties from pretrial spoliation of
      evidence and serves as a penalty, placing the risk of an erroneous
      judgment on the party that wrongfully created the risk. But, [a] party
      should only be penalized for destroying the documents if it was
      wrong to do so.

Id. (Citation and punctuation omitted; emphasis in original). But see AMLI

Residential Properties v. Georgia Power Co., 293 Ga. App. 358, 363 (1) (a) (iii)


      11
           This Court expresses no view on what that decision should be.

                                               24
(667 SE2d 150) (2008) (“Exclusionary sanctions may be appropriate where the

spoliator has not acted in bad faith.”).12

       Accordingly, the judgment of the Court of Appeals is affirmed in part and

reversed in part, and the case is remanded to the Court of Appeals for

proceedings consistent with this opinion.

       Judgment affirmed in part and reversed in part, and case remanded. All the

Justices concur.



                                   Decided June 29, 2015.

       Certiorari to the Court of Appeals of Georgia – 328 Ga. App. 686.

       Grant Law Office, Wayne Grant, Kimberly W. Grant; The Parrish Law

Firm, Jonathan A. Parrish, for Phillips et al.

       Huff, Powell & Bailey, Michael S. Bailey, Anna B. Fretwell, for Harmon



       12
          In AMLI Residential Properties v. Georgia Power Co., the Court of Appeals cited five
factors that a trial court should weigh before exercising its discretion to impose sanctions 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. Id. at 361 (1).




                                                 25
et al.

         Hall, Booth, Smith, John E. Hall, Jr., W. Scott Henwood, Wark W.

Wortham, Nathan A. Gaffney, for Henry Medical Center, Inc.




                                     26
