Practice Tip: Spoliation and the 'Bad Faith' Requirement

Black's Law Dictionary defines “spoliation” as “the intentional destruction, mutilation, alteration, or concealment of evidence.” Black's Law Dictionary 1437 (8th ed. 2004). Interestingly, some courts do not include the word “intentional” in their definition, and instead define spoliation as “the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301 (11th Cir. 2009); see also Bridgestone/Firestone N. Am. Tire, LLC v. Campbell, 258 Ga. App. 767, 768 (2002) (“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”). Compare Minn-Chem, Inc. v. Richway Indus., Ltd., No. C1-99-1963, 2000 WL 1066529, at *1 (Minn. Ct. App. Aug. 1, 2000) (“Spoliation is defined as the destruction of evidence ' “); Tucker v. Terminix Intern. Co., 975 S.W.2d 797, 799 (Tex. Ct. App. 1998) (“Spoliation is defined as the destruction of evidence.”) with Goff v. Harold Ives Trucking Co., 342 Ark. 143, 146 (Ark. 2000) (“Spoliation is defined as 'the intentional destruction of evidence ' “); Ripley v. Lanzer, 215 P.3d 1020, 1036 (Wash. Ct. App. 2009) (same).

Georgia courts do not define spoliation as “intentional destruction,” opting for the softer definition ' whereas Florida courts include the word “intentional” in their definition. Compare In re Delta/Air Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) with Doe v. Miami-Dade County, 797 F. Supp. 2d 1296, 1303 (S.D. Fla. 2011); see also Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4th Dep't 2006). By contrast, Alabama courts define spoliation as “an attempt by a party to suppress or destroy material evidence favorable to the party's adversary.” Walker v. City of Huntsville, 62 So.3d 474, 495 (Ala. 2010) (citing May v. Moore, 424 So.2d 596, 603 (Ala. 1982)). These neighboring jurisdictions' diverse definitions embody the differences in their states' requirements for imposing spoliation sanctions.

Various Tests for Imposing Spoliation

In diversity cases, federal law governs the imposition of sanctions for spoliation of evidence. Flury v. Daimler Chrysler Corp., 427 F. 3d 939, 944 (11th Cir. 2005); see also Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009). See, e.g., Silvestri v. Gen Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001); Reilly v. Natwest Mkts. Group Inc., 181 F.3d 253, 267 (2d. Cir. 1999); Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). Sometimes, however, as in the Eleventh Circuit, federal law does not set forth specific guidelines when deciding whether certain spoliation is sanctionable. Flury, 427 F.3d at 944. Accordingly, “courts may also look for guidance from state law principles as long as those principles are consistent with federal spoliation principles.” St. Cyr v. Flying J, Inc., No. 03:6-cv-13-33TEM, 2007 WL 1716365, at *3 (M.D. Fla. June 12, 2007).

Moreover, in some circuits, the law remains unsettled. See Medina v. Rose Art Indus., No. 02-CV-1864, 2003 WL 1877563, at *2 n.1 (E.D. Pa. Feb. 28, 2003) (“We note that the law is not settled as to whether spoliation sanctions are governed by federal law or state law”). Understanding the nuances of different states' spoliation law is of significant importance because a state's law might be examined in state courts and federal courts.

1. Spoliation Requires Bad Faith (Florida)

In some jurisdictions a finding of “bad faith” is required to impose sanctions. In other words, this is a threshold requirement before a court will even consider sanctions for spoliation. Florida is one state that requires a finding of “bad faith.”

Under Florida law, “spoliation is established when the party seeking sanctions proves that (1) the missing evidence existed at one time; (2) the alleged spoliator had a duty to preserve the evidence; and (3) the evidence was crucial to the movant being able to prove its prima facie case or defense.” St. Cyr, 2007 WL 1716365, at *3 (citing Floeter v. City of Orlando, No. 6:05-cv-400, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007)); see also Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. Dist. Ct. App. 2006). “The key to unlocking a court's inherent power [to impose sanctions for spoliation in Florida] requires a finding of bad faith.” Fed. Trade Comm'n v. First Universal Lending, LLC, No. 09-82322-CIVZLOCH, 2011 WL 673879, at *19 (S.D. Fla. Feb. 17, 2011) (quoting Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)). “[A] court may find bad faith based on direct evidence or on circumstantial evidence.” Id. at *21. Where no direct evidence of bad faith exists, bad faith may be found on circumstantial evidence where all of the following hallmarks exist:

1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; 2) the spoliating party engaged in an affirmative act causing the evidence to be lost; 3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and 4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

Id.

Accordingly, to find bad faith, a Florida court must find actual malice and may deny motions for sanctions where a party was merely negligent. Ford v. Rowland, 562 So.2d 731, 734 (Fla. 5th Dep't) see also Se. Mech. Serv., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009) (“Mere negligence in losing or destroying records is not enough for an adverse inference instruction.”); Victor v. Makita U.S.A., Inc., 2007 WL 3334260, at * 2 (declining to impose spoliation sanctions because saw disassembly did not involve bad faith); Floeter, 2007 WL 486633, at * 7 (denying a motion for sanctions because moving party failed to establish bad faith in spoliator's failure to preserve a computer and backup data tapes). A Florida court typically only will impose sanctions for spoliation when it is shown that a spoliator intentionally and maliciously spoliated evidence.

2. Bad Faith One of Several Factors (Georgia)

Some courts consider whether the spoliator acted in “bad faith,” but do not require a finding of “bad faith” to impose sanctions. Instead, “bad faith” is just one of several factors considered by a court when determining whether to impose sanctions or not. Georgia follows this approach.

In Georgia, courts consider the following when deciding whether to impose sanctions for spoliation: “(1) whether the defendant was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Flury, 427 F. 3d at 945.

“Georgia law does not require a showing of malice to find bad faith in a spoliation case.” Nat'l Grange Mut. Ins. v. Hearth & Home Inc., No. 2:06-cv-54-WCO, 2006 WL 5157694, *5 (N.D. Ga. Dec. 19, 2006). Instead, when determining the appropriateness of sanctions, the court should “weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” Bridgestone/Firestone, 258 Ga. App. at 770. For example, “[e]ven when conduct is less culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary, denying it the ability to adequately defend its case.” Id. In these cases where there is severe prejudice, “allowing the case to proceed ' may result in trial by ambush ' .” Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (1996). So while “bad faith” is a requirement for imposing sanctions in states like Florida, it is just one of several factors evaluated in Georgia.

3. Bad Faith Not Considered (Alabama)

Finally, there are some states that do not even consider “bad faith” when considering a bad-faith allegation. A court adopting this approach might consider the spoliator's conduct, but does not require an evaluation of whether or not the party acted in “good faith” or “bad faith.” Alabama is one such state where the court will only consider the culpability of the spoliator.

Similar to Georgia, Alabama courts employ a balancing test when deciding whether or not to impose sanctions for spoliation. An Alabama court considers: 1) the importance of the evidence destroyed; 2) the culpability of the offending party; 3) fundamental fairness; 4) alternative sources of the information obtainable from the evidence destroyed; and 5) the possible effectiveness of other sanctions less severe than dismissal. Ladner v. Litespeed Mfg. Co., 537 F. Supp. 2d 1206, 1215 (N.D. Ala. 2008) (citing Story v. RAJ Properties, Inc., 909 So. 2d 797 (Ala. 2005)). Although the Alabama Supreme Court has not expressly adopted these five factors, it has acknowledged that the first four factors “'provide a useful template for an orderly analysis of relevant considerations,'” while the fifth factor is also “pertinent.” Story, 909 So. 2d at 803. Furthermore, courts have routinely used this analysis and understand it to have been approved, if not expressly adopted. See, e.g., Cooper v. Toshiba Home Tech Corp., 76 F. Supp. 2d 1269, 1274 (M.D. Ala. 1999); Joyner v. B & P Pest Control, Inc., 853 So. 2d 991 (Ala. Civ. App. 2002); and Thompson, 889 So. 2d 596.

Under the first factor, the trial court should evaluate the importance of the evidence destroyed “in the context of the importance of the evidence preserved or otherwise available.” Story, 909 So. 2d at 803. It is not necessary that the destroyed evidence be the only evidence available on a particular issue. When examining the second factor, a court determines whether “the offending party 'purposefully' and 'wrongfully' destroy[ed] evidence 'he knew was supportive of the interest of his opponent'” Story, 909 So. 2d at 804 (citations omitted), but like in Georgia (and unlike in Florida), bad faith is not a threshold requirement. See Thompson v. Gardner, 889 So. 2d 596, 606 (Ala. Civ. App. 2004). For the third factor, the court will decide whether it would be “fundamentally unfair” to force defendants to defend themselves without the opportunity to examine the destroyed evidence. Story, 909 So. 2d at 805. The fourth and fifth factors are as they sound.

Little Distance, Big Differences

As shown above, spoliation law even among neighboring states within the same federal circuit can vary greatly. The differences are primarily evident in the states' requirements concerning bad faith. Florida law requires a showing of “bad faith” or actual malice in order to impose any form of sanction. Alabama and Georgia do not require bad faith, per se, and instead employ five-factor balancing tests. Alabama's five-factor test closely resembles Georgia's balancing test, as both examine: 1) the importance of the evidence; 2) the relative culpability of the spoliator; 3) whether the injured party will be able to defend itself in light of the spoliation and 4) whether or not there are available alternative sources of the spoliated evidence that can mitigate the prejudice incurred. An important difference, though, is that even though Georgia does not “require” bad faith, the test asks the court to examine whether the spoliator acted in “bad faith” whereas Alabama's test does not even mention “bad faith.”

Perhaps even more important, the two jurisdictions that examine whether the spoliator acted in “bad faith” have two different definitions for the term ' Florida requires malice and Georgia does not. What this creates is substantial confusion as some Georgia courts can require a finding of malice to impose sanctions, given that malice seems as though it should be associated with “bad-faith” conduct.

Conclusion

Because spoliation law differs in substance and application even among neighboring jurisdictions, practitioners considering whether to bring a motion for sanctions based on spoliation should be careful to consider the substantive law of the state in which they are practicing. Whether in state or federal court, the court might look to the applicable state spoliation law when determining if the spoliator's conduct is sanctionable and whether the conduct is sanctionable can turn on the state substantive law. As seen above, a spoliator is less likely to face sanctions in Pensacola (FL) than he is Valdosta (GA), and he is likely more immune in Valdosta (GA) than in Mobile (AL).

Josh Becker, a member of this newsletter's Board of Editors, is a Partner and Jenny Mendelsohn is an Associate with Alston & Bird LLP. They both focus their practices on product liability and mass tort defense.

The impact of a plaintiff's losing or destroying a product that is the subject litigation depends in large part on where the suit is pending. While attorneys likely appreciate the risk of judges applying spoliation law differently, they may not appreciate how spoliation jurisprudence can vary from state to state. For example, in some jurisdictions a finding of “bad faith” is required to impose sanctions. In others, whether “bad faith” exists or not is just one factor a court should evaluate when determining whether to impose sanctions. Still other courts do not even consider “bad faith” when determining whether to impose spoliation sanctions.

This article underscores the necessity of understanding the importance of preserving evidence given the jurisdictional differences in spoliation law. To illustrate these differences, we compare spoliation law in Georgia, Florida and Alabama ' three states that highlight the disparity in the law that can exist even between neighboring states in the same federal circuit.

What Is Spoliation?

Black's Law Dictionary defines “spoliation” as “the intentional destruction, mutilation, alteration, or concealment of evidence.” Black's Law Dictionary 1437 (8th ed. 2004). Interestingly, some courts do not include the word “intentional” in their definition, and instead define spoliation as “the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp. , 310 Fed. Appx. 298, 301 (11th Cir. 2009); see also Bridgestone/Firestone N. Am. Tire, LLC v. Campbell , 258 Ga. App. 767, 768 (2002) (“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”). Compare Minn-Chem, Inc. v. Richway Indus., Ltd., No. C1-99-1963, 2000 WL 1066529, at *1 (Minn. Ct. App. Aug. 1, 2000) (“Spoliation is defined as the destruction of evidence ' “); Tucker v. Terminix Intern. Co. , 975 S.W.2d 797, 799 (Tex. Ct. App. 1998) (“Spoliation is defined as the destruction of evidence.”) with Goff v. Harold Ives Trucking Co. , 342 Ark. 143, 146 (Ark. 2000) (“Spoliation is defined as 'the intentional destruction of evidence ' “); Ripley v. Lanzer , 215 P.3d 1020, 1036 (Wash. Ct. App. 2009) (same).

Georgia courts do not define spoliation as “intentional destruction,” opting for the softer definition ' whereas Florida courts include the word “intentional” in their definition. Compare In re Delta/Air Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1305 (N.D. Ga. 2011) with Doe v. Miami-Dade County , 797 F. Supp. 2d 1296, 1303 (S.D. Fla. 2011); see also Golden Yachts, Inc. v. Hall , 920 So.2d 777, 780 (Fla. 4th Dep't 2006). By contrast, Alabama courts define spoliation as “an attempt by a party to suppress or destroy material evidence favorable to the party's adversary.” Walker v. City of Huntsville , 62 So.3d 474, 495 (Ala. 2010) (citing May v. Moore , 424 So.2d 596, 603 (Ala. 1982)). These neighboring jurisdictions' diverse definitions embody the differences in their states' requirements for imposing spoliation sanctions.

Various Tests for Imposing Spoliation

In diversity cases, federal law governs the imposition of sanctions for spoliation of evidence. Flury v. Daimler Chrysler Corp. , 427 F. 3d 939, 944 (11th Cir. 2005); see also Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009). See, e.g., Silvestri v. Gen Motors Corp. , 271 F.3d 583, 590 (4th Cir. 2001); Reilly v. Natwest Mkts. Group Inc. , 181 F.3d 253, 267 (2d. Cir. 1999); Glover v. BIC Corp. , 6 F.3d 1318, 1329 (9th Cir. 1993). Sometimes, however, as in the Eleventh Circuit, federal law does not set forth specific guidelines when deciding whether certain spoliation is sanctionable. Flury, 427 F.3d at 944. Accordingly, “courts may also look for guidance from state law principles as long as those principles are consistent with federal spoliation principles.” St. Cyr v. Flying J, Inc., No. 03:6-cv-13-33TEM, 2007 WL 1716365, at *3 (M.D. Fla. June 12, 2007).

Moreover, in some circuits, the law remains unsettled. See Medina v. Rose Art Indus., No. 02-CV-1864, 2003 WL 1877563, at *2 n.1 (E.D. Pa. Feb. 28, 2003) (“We note that the law is not settled as to whether spoliation sanctions are governed by federal law or state law”). Understanding the nuances of different states' spoliation law is of significant importance because a state's law might be examined in state courts and federal courts.

1. Spoliation Requires Bad Faith (Florida)

In some jurisdictions a finding of “bad faith” is required to impose sanctions. In other words, this is a threshold requirement before a court will even consider sanctions for spoliation. Florida is one state that requires a finding of “bad faith.”

Under Florida law, “spoliation is established when the party seeking sanctions proves that (1) the missing evidence existed at one time; (2) the alleged spoliator had a duty to preserve the evidence; and (3) the evidence was crucial to the movant being able to prove its prima facie case or defense.” St. Cyr, 2007 WL 1716365, at *3 (citing Floeter v. City of Orlando, No. 6:05-cv-400, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007)); see also Golden Yachts, Inc. v. Hall , 920 So. 2d 777, 781 (Fla. Dist. Ct. App. 2006). “The key to unlocking a court's inherent power [to impose sanctions for spoliation in Florida] requires a finding of bad faith.” Fed. Trade Comm'n v. First Universal Lending, LLC, No. 09-82322-CIVZLOCH, 2011 WL 673879, at *19 (S.D. Fla. Feb. 17, 2011) (quoting Barnes v. Dalton , 158 F.3d 1212, 1214 (11th Cir. 1998)). “[A] court may find bad faith based on direct evidence or on circumstantial evidence.” Id . at *21. Where no direct evidence of bad faith exists, bad faith may be found on circumstantial evidence where all of the following hallmarks exist:

1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; 2) the spoliating party engaged in an affirmative act causing the evidence to be lost; 3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and 4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.

Id.

Accordingly, to find bad faith, a Florida court must find actual malice and may deny motions for sanctions where a party was merely negligent. Ford v. Rowland, 562 So.2d 731, 734 (Fla. 5th Dep't) see also Se. Mech. Serv., Inc. v. Brody , 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009) (“Mere negligence in losing or destroying records is not enough for an adverse inference instruction.”); Victor v. Makita U.S.A., Inc., 2007 WL 3334260, at * 2 (declining to impose spoliation sanctions because saw disassembly did not involve bad faith); Floeter, 2007 WL 486633, at * 7 (denying a motion for sanctions because moving party failed to establish bad faith in spoliator's failure to preserve a computer and backup data tapes). A Florida court typically only will impose sanctions for spoliation when it is shown that a spoliator intentionally and maliciously spoliated evidence.

2. Bad Faith One of Several Factors (Georgia)

Some courts consider whether the spoliator acted in “bad faith,” but do not require a finding of “bad faith” to impose sanctions. Instead, “bad faith” is just one of several factors considered by a court when determining whether to impose sanctions or not. Georgia follows this approach.

In Georgia, courts consider the following when deciding whether to impose sanctions for spoliation: “(1) whether the defendant was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.” Flury, 427 F. 3d at 945.

“Georgia law does not require a showing of malice to find bad faith in a spoliation case.” Nat'l Grange Mut. Ins. v. Hearth & Home Inc., No. 2:06-cv-54-WCO, 2006 WL 5157694, *5 (N.D. Ga. Dec. 19, 2006). Instead, when determining the appropriateness of sanctions, the court should “weigh the degree of the spoliator's culpability against the prejudice to the opposing party.” Bridgestone/Firestone, 258 Ga. App. at 770. For example, “[e]ven when conduct is less culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary, denying it the ability to adequately defend its case.” Id. In these cases where there is severe prejudice, “allowing the case to proceed ' may result in trial by ambush ' .” Chapman v. Auto Owners Ins. Co. , 220 Ga. App. 539, 542 (1996). So while “bad faith” is a requirement for imposing sanctions in states like Florida, it is just one of several factors evaluated in Georgia.

3. Bad Faith Not Considered (Alabama)

Finally, there are some states that do not even consider “bad faith” when considering a bad-faith allegation. A court adopting this approach might consider the spoliator's conduct, but does not require an evaluation of whether or not the party acted in “good faith” or “bad faith.” Alabama is one such state where the court will only consider the culpability of the spoliator.

Similar to Georgia, Alabama courts employ a balancing test when deciding whether or not to impose sanctions for spoliation. An Alabama court considers: 1) the importance of the evidence destroyed; 2) the culpability of the offending party; 3) fundamental fairness; 4) alternative sources of the information obtainable from the evidence destroyed; and 5) the possible effectiveness of other sanctions less severe than dismissal. Ladner v. Litespeed Mfg. Co. , 537 F. Supp. 2d 1206, 1215 (N.D. Ala. 2008) (citing Story v. RAJ Properties, Inc., 909 So. 2d 797 (Ala. 2005)). Although the Alabama Supreme Court has not expressly adopted these five factors, it has acknowledged that the first four factors “'provide a useful template for an orderly analysis of relevant considerations,'” while the fifth factor is also “pertinent.” Story, 909 So. 2d at 803. Furthermore, courts have routinely used this analysis and understand it to have been approved, if not expressly adopted. S ee, e.g., Cooper v. Toshiba Home Tech Corp. , 76 F. Supp. 2d 1269, 1274 (M.D. Ala. 1999); Joyner v. B & P Pest Control, Inc. , 853 So. 2d 991 (Ala. Civ. App. 2002); and Thompson , 889 So. 2d 596.

Under the first factor, the trial court should evaluate the importance of the evidence destroyed “in the context of the importance of the evidence preserved or otherwise available.” Story, 909 So. 2d at 803. It is not necessary that the destroyed evidence be the only evidence available on a particular issue. When examining the second factor, a court determines whether “the offending party 'purposefully' and 'wrongfully' destroy[ed] evidence 'he knew was supportive of the interest of his opponent'” Story, 909 So. 2d at 804 (citations omitted), but like in Georgia (and unlike in Florida), bad faith is not a threshold requirement. See Thompson v. Gardner , 889 So. 2d 596, 606 (Ala. Civ. App. 2004). For the third factor, the court will decide whether it would be “fundamentally unfair” to force defendants to defend themselves without the opportunity to examine the destroyed evidence. Story, 909 So. 2d at 805. The fourth and fifth factors are as they sound.

Little Distance, Big Differences

As shown above, spoliation law even among neighboring states within the same federal circuit can vary greatly. The differences are primarily evident in the states' requirements concerning bad faith. Florida law requires a showing of “bad faith” or actual malice in order to impose any form of sanction. Alabama and Georgia do not require bad faith, per se, and instead employ five-factor balancing tests. Alabama's five-factor test closely resembles Georgia's balancing test, as both examine: 1) the importance of the evidence; 2) the relative culpability of the spoliator; 3) whether the injured party will be able to defend itself in light of the spoliation and 4) whether or not there are available alternative sources of the spoliated evidence that can mitigate the prejudice incurred. An important difference, though, is that even though Georgia does not “require” bad faith, the test asks the court to examine whether the spoliator acted in “bad faith” whereas Alabama's test does not even mention “bad faith.”

Perhaps even more important, the two jurisdictions that examine whether the spoliator acted in “bad faith” have two different definitions for the term ' Florida requires malice and Georgia does not. What this creates is substantial confusion as some Georgia courts can require a finding of malice to impose sanctions, given that malice seems as though it should be associated with “bad-faith” conduct.

Conclusion

Because spoliation law differs in substance and application even among neighboring jurisdictions, practitioners considering whether to bring a motion for sanctions based on spoliation should be careful to consider the substantive law of the state in which they are practicing. Whether in state or federal court, the court might look to the applicable state spoliation law when determining if the spoliator's conduct is sanctionable and whether the conduct is sanctionable can turn on the state substantive law. As seen above, a spoliator is less likely to face sanctions in Pensacola (FL) than he is Valdosta (GA), and he is likely more immune in Valdosta (GA) than in Mobile (AL).

Josh Becker, a member of this newsletter's Board of Editors, is a Partner and Jenny Mendelsohn is an Associate with Alston & Bird LLP. They both focus their practices on product liability and mass tort defense.