Electronic Discovery

In Botey v. Green, et. al., No. 12-01520 (M.D. Pa., April 4, 2016), Pennsylvania District Judge Robert D. Mariani denied the plaintiff’s request for an adverse inference sanction for the defendants’ failure to preserve trucking logs related to an accident between the plaintiff and a truck driver working for the defendant’s company, but did agree not to allow the defendants to prove the contents of the destroyed documents by other means or argue their contents in dispositive motions or at trial.

Case Background

In this lawsuit arising out of a traffic accident between the plaintiff and a truck driver (Robert Green) working for the defendant’s company in May 2011 resulting in serious injury to the plaintiff, the parties originally planned to take the driver’s deposition during the normal discovery period.  However, in February 2014, it was determined that the truck driver suffered from dementia and was therefore unable to be deposed.  As a result, the plaintiff sought expanded discovery from the defendants thirty days’ worth of the truck driver’s trip documents and logs that the trucking company maintains for each of its truck drivers, whereas the defendants argued that the plaintiff was only entitled to logs going back 34 hours before the accident.  After telephone arguments, the Court compromised and ordered the defendants to provide fifteen days of logs.

However, the defendants only produced four additional days of logs, not the full fifteen that the Court ordered.  The plaintiff then filed a Motion for Sanctions, which requested “that an adverse inference jury instruction be read against Defendants at the time of trial” as well as “an Order precluding Defendants from arguing in dispositive motions that Plaintiff lacks evidence to prove his corporate negligence claims against Defendants FFE and Conwell based on the documents destroyed.”

The defendants’ trucking logs were administered and maintained by a third party vendor, which only stored the electronic data from the trucks for a period of six months before automatically deleting them. The plaintiff sent litigation hold letters as early as October 2011, but sent them to a local office in Norman, Oklahoma rather than to the defendants’ corporate office in Dallas, Texas and the defendants acknowledged that the letters were never forwarded to the corporate office.

Judge’s Ruling

Judge Mariani noted that “[u]nder Pennsylvania law, to determine the penalty for a spoliation of evidence claim, Plaintiff must show (1) the degree of fault of Defendant in altering or destroying the evidence (2) the degree of prejudice Plaintiff has suffered, and (3) the availability of a lesser sanction that will protect Defendant’s rights and deter future similar conduct.”

Having already found that the defendants were under a legal duty to preserve the logs, Judge Mariani ruled that “Plaintiff has not shown that he is entitled to the ‘adverse inference’ sanction”, noting that “Plaintiff does not explain what ‘adverse inference’ he wants.”  Continuing, Judge Mariani stated that “It is too great a leap to conclude that, if the destroyed records were preserved, they would have shown such evidence of a loss by Green of his mental faculties that Defendants would have been placed on notice that he was suffering from dementia and was likely to cause accidents and therefore advance Plaintiff’s negligence claims against FFE and Conwell.”

As a result, Judge Mariani denied the plaintiff’s request for an adverse inference sanction, noting that failure to preserve the logs “appears to be mainly carelessness in failing to preserve documents from destruction in the ordinary course of business”.  However, Judge Mariani also noted that “while the Court will not grant Plaintiff’s request for an adverse inference, it is only logical and fair that Defendants will not be allowed to rely on the missing records in support of any dispositive motions. This is for obvious reasons: Defendants cannot claim that information in records that was destroyed would exonerate them and expect the Court to permit such an argument.”

So, what do you think?  Should the defendants have received the requested adverse inference sanction?  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.

In Core Laboratories LP v. Spectrum Tracer Services, LLC et. al., No. 11-1157 (W.D. Okla. Mar. 7, 2016), Oklahoma District Judge Vicki Miles-LaGrange granted the plaintiff’s motion for sanctions for emails that were not preserved during an email provider switch via an adverse inference instruction, but denied the plaintiff’s motion for sanctions for deleting files and for wiping the computer of one of its employees.

Case Background

The plaintiff contended that the defendants had a duty to preserve evidence in the wake of and after this litigation commenced, and identified three instances where it contended that defendants intentionally destroyed relevant evidence in this matter, including (1) lost emails relating to correspondence between the defendant and a third party (2) deleting computer files from one defendant employee’s hard drive; and (3) wiping files from another employee’s computer. The defendants contended that the plaintiff had not identified any relevant evidence that has been lost nor could it identify any prejudice it suffered by defendants’ actions.

Judge’s Ruling

Judge Miles-LaGrange began by looking at the recently amended FRCP 37, noting that, in Rule 37(e), spoliation sanctions are only proper when the accused party had a duty to preserve because it knew or should have known that litigation was imminent and if the adverse party was prejudiced.

With regard to the loss of emails between the defendant and a third party, Judge Miles-LaGrange ruled that “Core has shown it was prejudiced by not having access to Spectrum’s emails prior to June 2011. Specifically, the Court finds that this litigation was initiated on March 11, 2011, and Brown testified that relatively quickly after this lawsuit was filed, Spectrum took steps to change its email service provider to ensure every Spectrum email was captured to comply with the requirements of this lawsuit. While Brown testified that Spectrum’s previous email service provider did not have the capability to capture archive emails, the Court finds it was not unreasonable for Spectrum to have taken steps to ensure that any emails prior to switching over to its new email service provider were saved. The Court infers that because all emails prior to June 2011 were lost, emails regarding the formation of Spectrum and the manufacturing of its tracing systems would have been lost too. Since Faurot has confirmed that TPM used one of Core’s pumps as a prototype to produce Spectrum’s pumps, the Court finds that the lack of information available because of Spectrum’s email loss is prejudicial to Core.”

Judge Miles-LaGrange determined that an appropriate sanction would be an adverse inference jury instruction presuming any potential communications that were lost due to the defendant changing its email service provider would have been unfavorable to the defendant.

With regard to the deleted files from one employee’s computer, Judge Miles-LaGrange found “that defendants admitted that Morrison’s personal files were deleted from the hard drive and, further, the hard drive was turned over to Core and has been the subject of an ongoing forensic analysis, during this litigation, to recover all of Core’s proprietary software from the hard drive”.  With regard to the wiped hard drive of another employee, because the defendant testified that anything needed to be kept from his computer was exported to an external hard drive prior to the computer being wiped, Judge Miles LaGrange found the plaintiff suffered no prejudice as a result of this action ether and denied the plaintiff’s motion for sanctions for the deleted files and wiped drive.

So, what do you think?  Should the defendants have been sanctioned for the deleted files and the wiped drive?  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.