Electronic Discovery Law
Fact Disputes Coupled with Adverse Inference from Possible Spoliation Allow Plaintiffs to Avoid Summary Judgment
Morgan v. U.S. Xpress, Inc., 2006 WL 1548029 (M.D. Ga. June 2, 2006)
This case involves a motor vehicle accident about which plaintiffs and defendant offered entirely different theories. Plaintiffs alleged that the accident occurred when a U.S. Xpress tractor-trailer pulled out from the shoulder of the road and turned sharply in front of Wes Morgan's semi-oil tanker, forcing Mr. Morgan to veer to the right shoulder of the road to avoid hitting the truck and, in the process, lose control. Defendant alleged that the accident was a single-vehicle accident involving only Mr. Morgan, pointing to the results of a police investigation, which found no physical evidence of a second vehicle, and no eyewitnesses to the accident.
Through the course of discovery, plaintiffs sought information that would enable them to identify the U.S. Xpress truck they claimed was involved in the accident. Plaintiffs obtained the driver logs of U.S. Xpress drivers for the day of the accident, and found that the logs of two drivers suggested that those drivers could have been in the area on the date of the accident. Both drivers, however, denied traveling in the area and denied being involved in the accident.
To further pinpoint the drivers' locations, and to identify any other drivers who may have been traveling through the area on the morning of the accident, plaintiffs sought satellite positioning data maintained by U.S. Xpress on its internal computer system. U.S. Xpress declined to produce the data, claiming that any satellite positioning data recorded on its system on the date of the accident would have been routinely purged fourteen days later, and therefore was unavailable when the plaintiffs notified U.S. Xpress of the accident in May 2003.
Plaintiffs disputed this explanation, however. Plaintiffs claimed that the data remained in the U.S. Xpress computer system for more than 14 days, and that it was backed-up to a monthly back up tape. Plaintiffs offered evidence that the backup tape containing the relevant data was destroyed in 2004, after the litigation was underway, and contrary to the company's data retention policy.
The court observed that the satellite positioning data recorded by U.S. Xpress computers on the date of the accident would have been important evidence as to the location of the two drivers' trucks on the date of the accident. It concluded that, given the "questionable circumstances" surrounding the destruction of the data, summary judgment was not appropriate. It continued:
Specifically, there is a genuine issue of fact concerning the availability of the data on the U.S. Xpress computer system after fourteen days, the retention of such data on back up tapes and defendant's motivation in destroying those tapes. Defendant claims that data was routinely purged after fourteen days; however, Plaintiffs have produced witnesses who claim to have accessed satellite positioning data that was more than fourteen days old from U.S. Xpress's computer system during the relevant time period. In addition, Defendant claims that the satellite positioning data was not saved to monthly back up tapes, but Plaintiffs have produced witnesses who have testified to the contrary. Finally, Defendant testified that back-up tapes were supposed to be stored for two years before being written over, and yet the tapes that would have contained the relevant data were written over well in advance of this time. Though Defendant has offered evidence showing that it shortened the retention period from two years to one year in the latter part of 2003, this evidence fails to explain why the February 2003 back up tape was not preserved after U.S. Xpress learned of the lawsuit in May 2003. A jury must resolve these factual conflicts.
The court noted that, although the adverse inference rendered summary judgment inappropriate, it would not relieve the plaintiffs of their obligation to meet their burden of proof at trial:
Even if the Plaintiffs establish that the destruction of the back-up tapes was predicated on bad faith, the Plaintiffs will still have to prove by a preponderance of the evidence that the culprit vehicle was owned by U.S. Xpress and operated by an agent or employee of U.S. Xpress in the course and scope of his employment. From the destruction of these tapes, the adverse inference rule permits only an inference that the tapes would have contained relevant and potentially damaging information, not that a U.S. Xpress truck and driver were, in fact, responsible for the accident.
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