When a new trucking accident case is assigned to defense counsel, one of the first things to be accomplished is to ensure that all relevant evidence is accounted for and preserved. While most of the evidence amassed in this process will never see the light of any court room, nor will much of it ever be used in depositions, or even given much consideration by experts, nearly all of it will be potentially responsive to the litany of requests for production that are typically served during the written discovery phase of litigation.
As will be seen in the recent cases discussed below, evidence that would otherwise be innocuous among the documents and materials exchanged in the ordinary course of discovery can suddenly become conspicuous simply by its absence, and thereby take center stage in the resulting motions practice in which the propounding party will claim to have been prejudiced by what it will predictably argue to have been a spoliation of evidence. This will then force upon the court the task of determining whether there was any spoliation, whether it was done negligently or intentionally, the extent to which the moving party has been prejudiced and what sanctions, if any, are necessary to level the playing field at trial. As the following recent decisions illustrate, courts have become increasingly intolerant of spoliation of evidence, and they are employing sanctions more often as a shield to protect the requesting party from any intended or unintended prejudice, rather than as a sword to allow a “win on a technicality.”
On November 14, 2018, the United States District Court for the Middle District of Pennsylvania refused to grant a new trial following a jury verdict in favor of the defendants when the plaintiff claimed that the court should have given an adverse inference instruction for spoliation of evidence. Botey v. Green involved an accident on May 10, 2011, when Robert Green was operating a tractor-trailer owned by Conwell Corporation and registered to FFE Transportation Services, Inc., and collided with Jonathan Botey on State Route 924 in Hazleton, Pennsylvania.
During discovery, the parties originally planned to take Green's deposition. However, they learned that he suffered from dementia and was therefore unable to be deposed. The plaintiff then requested FFE to produce thirty days' worth of Green's trip documents and logs that the company maintained for each of its truck drivers. The plaintiff contended that Green had been exhibiting signs of dementia prior to being allowed to drive the tractor-trailer, and argued that these records would allow him to show that Green was having issues consistent with dementia, which would be relevant to establishing his negligence claims against FFE and Conwell for allowing Green to drive their vehicle when he lacked sufficient skill, judgment, and ability to safely do so. FFE objected to this request, and argued that the plaintiff was only entitled to logs going back 34 hours before the accident.
In response to the plaintiff’s motion to compel, the court ordered FFE to provide Green’s logs, pre-trip inspections, and driver inspection vehicle reports for the 15 days prior to the date of loss, as well as the corresponding trip and operational documents and GPS records for those 15 days. When FFE only produced four additional days of logs, the plaintiff filed a motion for sanctions alleging spoliation of evidence on the part of both Conwell and FFE, and sought an adverse inference jury instruction.
Following an evidentiary hearing on the plaintiff’s motion for sanctions, the court found that the defendants had been careless in failing to preserve documents from destruction in the ordinary course of business, but there was no evidence to prove that they intentionally destroyed any of the documents requested by the plaintiff. With regard to the plaintiff’s request for an adverse inference instruction, the court observed that it was too great a leap to conclude that, if the destroyed records had been preserved, they would have shown evidence of a loss by Green of his mental faculties such that defendants would have been placed on notice that he was suffering from dementia and was likely to cause accidents so as to advance the plaintiff's corporate negligence claims. While the plaintiff couched his need for the purged records in terms of helping to prove his negligence claim against the defendants in that "they should have been watching him" and they "dropped the ball" and "negligently instructed him and didn't supervise him in a proper way when he was having difficulties in training", the plaintiff's actual request for the missing records was an attempt to establish that Green was exhibiting signs of dementia at the time of the accident at issue. However, it was undisputed that Green had been cleared by a medical doctor, in accordance with the Federal Motor Carrier's Safety Act, and he had a valid medical certification card, pursuant to which he was allowed to drive in accordance with the regulations. Accordingly, the court disagreed with the plaintiff’s argument that the defendants destroyed the records in an attempt to hide evidence of Green’s cognitive deficiencies.
As a result, the court denied the plaintiff’s request for an adverse instruction, but ordered that the defendants were precluded from proving the contents of the destroyed documents by other means or arguing their contents in dispositive motions or at trial. Following a jury verdict in favor of the defendants, the plaintiff moved for a new trial on several bases, including the court’s failure to give an adverse instruction based on the spoliation of evidence.
In refusing to grant a new trial on that basis, the court explained that the plaintiff failed to articulate precisely what "adverse inference" should have been instructed to the jury. The plaintiff argued that the destroyed documents may have shown that Green was having cognitive issues while driving, and that he continued his pattern of unsafe and reckless driving, and that the defendants would therefore have been aware of these issues. However, the plaintiff did not address whether he was requesting the court to instruct the jury that the destroyed evidence would have been adverse to the defendants as it would have shown evidence that Green was suffering from dementia at the time of the accident, or that the jury should adopt the plaintiff's interpretation of what the documents would have demonstrated.
Moreover, the court reasoned that the adverse inference instruction the plaintiff sought pertained principally to plaintiff's claims against FFE and Cromwell, and the jury, having found that Green was not negligent, never reached the issue of the corporate defendants’ liability. Thus, the absence of an adverse instruction as to what the destroyed documents may have shown with respect to the knowledge of FFE and Conwell was irrelevant to the plaintiff’s post-trial motion.
On October 2, 2018, the Court of Appeals of Georgia addressed the issue of negligent spoliation in Wilkins v. City of Conyers. While not involving a commercial motor carrier, this case focuses on the duty to preserve vehicles involved in a fatal crash, herein a tragic accident occurring on May 26, 2015, when Wilkins’s pregnant wife and unborn child were killed when she hydroplaned while driving his truck and struck another vehicle. The case was brought against the municipality because there was a substantial amount of water on the roadway at the time of the accident and the storm drain servicing that area of the roadway was clogged.
Wilkins’s truck had been towed to Chancey’s Wrecker Service, Inc., which was not a party to this case. Chancey’s sent a certified letter to the address on Wilkins’s driver’s license, which was his mother’s address, although he no longer lived there, stating that he would be charged a towing fee, as well as $20 per day in storage fees and administration charges for notifications regarding the subject vehicle. Wilkins’s mother signed for and received the letter, and Wilkins admitted that he received and read the letter.
Wilkins then retained counsel who sent a letter to Chancey’s specifically directing it to hold and retain the subject vehicle. Counsel thereafter contacted Chancey’s and confirmed its receipt of his letter. The following month, Chancey’s sent a certified letter to Wilkins demanding payment of $1450, representing the towing fee as well as accrued storage and administrative fees, and notifying him that the vehicle and its contents would be deemed abandoned after thirty days and would thereafter be sold at public auction. While the letter was delivered to Wilkins’s mother’s house and signed for by his aunt, Chancey’s did not copy counsel on the letter. Unaware of the certified letter, counsel contacted Chancey’s the following month to confirm that the vehicle was still being preserved, and learned, to his astonishment, that it had been destroyed. The destruction of the vehicle occurred less than thirty days from the date that Wilkins’s aunt signed for the letter. Wilkins signed an affidavit stating that he was not regularly checking his mail at his mother’s house and that it had been his understanding that all communications related to the subject vehicle and his lawsuit were to be directed to his attorney.
The City moved to strike Wilkins’s complaint for spoliation of evidence as a sanction for “allowing” the truck that his wife was driving to be destroyed. The City’s accident reconstructionist submitted an affidavit stating that, without Wilkins’s truck, he was unable to determine other potential causes for the crash, such as mechanical or brake failure, or loss of tire traction due to low tread. Moreover, he said that he was unable to determine whether she had applied the brakes before the accident in order to establish whether she had been traveling at a higher rate of speed. In response, Wilkins’s reconstructionist opined that, given the reported depth of the water, the primary cause of the accident was excessive water on the roadway; accordingly, even if Wilkins’s truck had been preserved, it would not have provided any additional reliable evidence because it did not have a data recorder and the water on the road resulted in a lack of friction that caused the hydroplane event, which can occur regardless of the speed of the driver.
Finding the City was severely prejudiced by the destruction of the truck, the trial court granted the City’s motion to strike the complaint. In so holding, the trial court observed:
- While ignorance of a duty is perhaps not as blatant as the intentional destruction of evidence, it is not the moral equivalent of ‘good faith’ and supports a finding that [Wilkins] acted in bad faith.
Not unsurprisingly, Wilkins appealed the trial court’s decision. On appeal, the Court of Appeals concluded that the trial court erred by attributing bad faith to Wilkins based upon Chancey’s destruction of the evidence and abused its discretion by imposing the most severe sanction by striking his complaint. Declining to speculate on Chancey’s motives, the court refused to find that an agency relationship existed between Chancey’s and Wilkins from which the trial court could have ascribed Chancey’s destruction of the vehicle to Wilkins. Finding instead that Wilkins’s failure to ensure his receipt of the demand letter from Chancey’s to be negligent at most, the court went on to reverse the trial court’s order striking Wilkins’s complaint and remanded the case with instructions to fashion a more appropriate remedy to fit the circumstances of the case.
In Barry v. Big M Transportation, Inc., the United States District Court for the Northern District of Alabama fashioned its own sanction to address what it considered to be unintentional spoliation on the part of the defendants. On March 31, 2015, Barry was driving from Anniston, Alabama to Fairburn, Georgia on Interstate 20. While driving through a construction zone, he was involved in a side-to-side collision with a tractor-trailer. While his car was still operational, Barry brought his vehicle to a complete stop on the shoulder of the road, which was serving as the right lane of traffic in the construction zone. Meanwhile, Shaffer was driving a tractor-trailer owned by his employer, Big M, in the left lane of the same construction zone. When another truck cut in front of Shaffer’s truck, he swerved into the right lane and crashed into Barry’s car.
At the scene of the accident, Shaffer called Big M’s CFO, who told him to take “plenty of pictures of . . . the truck, trailer, scene, cars, everything.” Shaffer was not told to preserve the data on the truck’s electronic data recorder. The state trooper’s report identified Barry’s improper stopping in the road as the primary cause of the accident. The Big M truck was towed to a repair facility and later driven to Big M’s headquarters in Mississippi.
Prior to the accident, the subject tractor had been selected for sale as part of a vehicle swap program. On April 27, 2015, just less than a month after the accident, Big M received a preservation letter from Barry’s lawyer requesting that Big M preserve, among other things, the subject tractor and its Electronic Control Module, or “Black Box” (“ECM”). On April 30, 2015, the sale of the tractor was completed. Although it was Big M’s normal practice to download the ECM data, that was not done in this case.
At the close of discovery, Barry moved for partial summary judgment as a spoliation sanction for the failure of Shaffer and Big M to preserve the tractor’s ECM following the accident. Specifically, Barry requested the court to either enter a default judgment as to liability in his favor on his negligence claim, or to enter an order judicially establishing “the speed [at] which Shaffer was driving and the maneuvers he made in the light most favorable” to him.
The court found that Big M was guilty of spoliation, noting that it was Big M’s normal practice to retrieve the ECM data from a tractor following a severe crash, and there was nothing that prevented Big M from doing so in this case. The court focused on the fact that Big M received the preservation letter three days before completing the sale of the truck. The court also found that the failure to preserve the ECM data was prejudicial to Barry by depriving him of the best and most accurate evidence of the truck’s speed in the moments prior to the accident. The court declined to hold Shaffer responsible for the spoliation, noting that there was no evidence that he had any custody or control over Big M’s tractor following the accident, as he was rushed to the hospital from the scene.
In refusing to implement either of Barry’s suggested sanctions, the court reasoned that Big M did not act with the intent to deprive Barry of the use of the ECM data, as Big M’s designee testified that he believed that the ECM data had been overwritten as soon as the truck was moved by the towing company. Even though the ECM data would not have been overwritten when the truck was being towed, the court concluded that there was no showing of bad faith to warrant a severe sanction. The court also observed that, by the time Big M received the preservation letter, the truck had been driven from Alabama to Mississippi, which would have overwritten the ECM data. The court also noted that it was reasonable to believe that Barry was at fault for causing the accident, given the state trooper’s report. Further, the court found that Barry was not severely prejudiced by not having the ECM data because his accident reconstructionist was able to render an opinion to a sufficient level of certainty as to the speed of the truck even without the ECM data.
Sparing Big M from the severe sanctions sought by Barry, the court stated that it would simply inform the jury that the ECM data was not preserved and allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.
The tort of negligent spoliation of evidence was addressed by the Billings Division of the United States District Court for the District of Montana in Underberg v. Employers Mutual Casualty Company. There, Thomas J. Underberg was driving a 2010 Dodge Ram 3500 pickup truck owned by his employer, Cross Petroleum Services, when he crossed the centerline of the road and impacted a semi-tractor on the sleeper and then down the side of the cab and trailer. Underberg died in the crash and the pickup truck was a total loss. Employers Mutual insured the Cross Petroleum pickup truck that Underberg was driving and concluded that Underberg was 100% responsible for the accident. Within a week of the accident, Employers Mutual contacted the salvage yard where the pickup truck was being stored, and confirmed that the yard would dispose of the truck.
Sixteen months after the accident, Cross Petroleum received a letter from an attorney representing Underberg’s estate indicating that he had learned of a safety recall on the pickup for its steering mechanism. An agent for Employers Mutual informed the estate’s attorney that the pickup had been crushed. Fourteen months later, counsel for Chrysler contacted Cross Petroleum requesting a letter confirming that the pickup had been destroyed. Nearly three years after the accident, Underberg’s estate filed suit against Chrysler for products liability, which settled. The estate then proceeded against Employers Mutual for a separate claim for spoliation of evidence, admitting that no one contacted Employers Mutual on behalf of the estate regarding the pickup at any time within one year of the accident and that the estate never requested Employers Mutual to preserve or hold the pickup. Instead, the estate’s theory against Employers Mutual was that it had notice of safety recalls involving Dodge Ram Trucks and that it knew or should have known of the potential for litigation.
Montana is in the minority of states that recognizes a separate tort for the spoliation of evidence. With regard to negligent spoliation of evidence, the following elements must be met:
- existence of a potential civil action;
- a legal or contractual duty to preserve evidence relevant to that action;
- destruction of that evidence;
- significant impairment of the ability to prove the potential civil action;
- a causal connection between the destruction of the evidence and the inability to prove the lawsuit;
- a significant possibility of success of the potential civil action if the evidence were available;
The court focused on the second element, which requires the plaintiff to establish that the defendant owed a duty to the plaintiff. The court first observed that there is no general duty to preserve evidence for the use of others. The court noted that the Montana Supreme Court, in creating the tort of spoliation, was nevertheless sensitive to the rights of third parties to control and dispose of their property as they see fit. Accordingly, negligent spoliation imposes only a limited duty to preserve evidence that could only be created in four specific situations in which:
- the spoliator voluntarily undertakes to preserve the evidence and a person reasonably relies to his detriment;
- the spoliator entered into an agreement to preserve the evidence;
- there has been a specific request to the spoliator to preserve the evidence;
- there is a duty to do so based upon a contract, statute, regulation or some other special circumstance/relationship.
The court concluded that none of the factors had been met, as the estate did not allege, and there was no evidence to suggest, that Employers Mutual voluntarily undertook to preserve the pickup or entered into an agreement to preserve the pickup. Moreover, the estate conceded that it never made a specific request to Employers Mutual to preserve the pickup, as it was undisputed that nobody contacted Employers Mutual regarding the pickup until over a year following the accident. Last, there was no allegation that Employers Mutual had a duty to preserve the pickup on the basis of a contract, statute or regulation.
The estate nonetheless claimed that Employers Mutual had a duty to preserve the pickup on the basis of a “special circumstance/relationship” between Employers Mutual and the estate, in that Employers Mutual, as a sophisticated insurer, should have foreseen that a potential lawsuit would be brought by the estate, including a potential products liability action. Specifically, the estate argued that Employers Mutual should have known of the prior recalls involving Dodge Ram pickup trucks and was therefore too quick to dispose of the pickup.
However, the court observed that the special relationship that the estate claimed to exist was not based on a contract, statute or regulation. The court concluded that, at most, Employers Mutual had potential constructive notice of the need to preserve the pickup, but mere constructive notice of a potential lawsuit is insufficient to trigger a duty to preserve evidence. Otherwise, under the estate’s theory, Employers Mutual would be required to preserve the pickup indefinitely, or at least until the statute of limitations expired on any potential claims, incurring the storage fees for that entire time. Holding that the law does not impose such an onerous burden on insurers or other property owners in the absence of a recognized duty, the court went on to grant the motion for summary judgment filed by Employers Mutual.
As the above cases illustrate, while courts will enforce discovery obligations and will sanction a party for failing to comply with its obligations to preserve evidence, courts are loathe to make their sanctions outcome determinative and therefore narrowly tailor their sanctions to level the playing field at trial.