eDiscovery Daily Blog

Spoliation of Truck Evidence Precludes Plaintiffs’ Use of That Evidence “As a Sword”: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Below v. Yokohama Tire Corp., No. 15-cv-529 (W.D. Wisc. Feb. 27, 2017), Wisconsin District Judge William M. Conley, deciding on several pre-trial motions, granted (to an extent) the defendants’ motion for relief due to spoliation of evidence for failing to preserve the truck involved in a crash, stating that “defendants persuasively argue that the absence of this evidence should at minimum preclude plaintiffs from using it as a sword, even if defendants cannot use it as a shield.”

Case Background

In this product liability case related to a truck crash due to an alleged defective tire produced by the defendants that left the plaintiff severely injured, the defendants contended that the plaintiff’s pickup truck was destroyed at a salvage yard before plaintiffs filed this lawsuit.  The defendants argued that destruction of the truck hampered their defense because they were unable to evaluate, among other things, the suspension and steering systems, the seatbelt, the electronic data recorder and the other three tires.  Asserting that the plaintiffs or their “agents” sold the plaintiff’s pickup truck to a salvage yard with the knowledge that it would be destroyed after inspecting it, taking photographs and preserving the failed tire, defendants moved for a spoliation instruction.  Because of the plaintiffs’ actions, as well as receipt of $22,000 in insurance proceeds from the sale of the truck to the plaintiffs, the defendants argued that the plaintiffs’ bad faith could be inferred.

The plaintiffs asserted that the salvage yard agreed to the request from an investigator (retained by plaintiffs’ counsel) to preserve the truck in October 2013 (about a month and a half after the accident). In May of 2014, another of its investigators (Tom Malone) followed-up with the salvage yard to ask them to continue to preserve the truck and to notify him about any storage charges. Despite these efforts, plaintiffs’ counsel later “discovered” in the fall of 2015 that the truck had been destroyed on October 23, 2014.

Judge’s Ruling

Judge Conley noted that “A spoliation instruction is only obtainable if the proponent shows an intentional act or bad faith by the party in possession of the destroyed evidence.”

With regard to the plaintiffs’ failure to preserve all but the allegedly defective tire from the truck, Judge Conley stated: “Left unexplained is how plaintiffs ended up with the single, allegedly defective tire without preserving the other three; why other steps were not taken to preserve similar evidence, including possible electronic evidence that must be preserved under Fed. R. Civ. P. 37(e); and perhaps most important, why plaintiffs waited another, two full years after the accident without notifying Yokohama of the availability of this piece of key evidence, despite knowing that it was the focus of plaintiffs’ liability claims within months of the accident itself. These questions are all the more troubling because plaintiffs were represented by a sophisticated personal injury law firm, who know full well of their duty to maintain evidence relevant to likely litigation, to provide notice of a possible claim, and notice of ‘the existence of evidence relevant to that claim.’…Plus, Malone’s letter to the salvage yard presents many more questions than it answers, as to timing and whether any agreement ever existed with the salvage yard.”

As a result, Judge Conley ruled, as follows: “Based on this record, plaintiffs’ counsel certainly should have taken additional steps to ensure that the truck (or at least potentially key evidence) was preserved, as well as notified likely defendants timely of the opportunity to inspect it. The failure to do so falls somewhere between negligence and gross negligence, but perhaps short of bad faith or intentional conduct requiring an adverse inference instruction. Even so, defendants persuasively argue that the absence of this evidence should at minimum preclude plaintiffs from using it as a sword, even if defendants cannot use it as a shield. Therefore, the defendants motion is GRANTED to the extent that (1) defendants may explore how information from an inspection of Below’s truck could have affected the experts’ opinions at trial; and (2) plaintiffs may not argue that defendants or their experts failed to explore or prove something if prevented from doing so by plaintiffs’ negligence in preserving evidence. Defendants’ motion is otherwise RESERVED pending a further proffer and argument at the final pretrial conference, including defendants request for a spoliation instruction.”

So, what do you think?  Did the judge go far enough in addressing the spoliation of truck evidence?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

print