Electronic Discovery Law

Durst v. FedEx Express, 2006 WL 1541027 (D.N.J. June 2, 2006)

Plaintiff ("Durst") had been employed as a part-time courier by FedEx. He contended that he was required to drive vehicles with "safety issues" that suffered regular breakdowns. One day, he was unable to insert the key into the ignition of his truck. FedEx sent a replacement vehicle, but instead of finishing his route, Durst returned to the station and refused to deliver remaining packages. He based this refusal on alleged unaddressed safety concerns and prior vehicle breakdowns. Durst received a termination letter two days later. Litigation ensued, FedEx unsuccessfully moved for summary judgment, and Durst filed a motion in limine seeking an adverse inference that FedEx destroyed or failed to maintain evidence that would have been favorable to Durst and unfavorable to FedEx. Such evidence included accident reports, towing records, Vehicle Inspection Reports (regularly filled out by FedEx couriers), vehicle repair histories, and email identifying repeated problems with vehicles.

The court observed that four essential factors must be demonstrated for a spoliation inference to be appropriate:

(1) that the "evidence in question [is] under the adverse party's control;" (2) "that there has been an actual suppression of this evidence, i.e., that [the evidence at issue] was intentionally untimely disclosed;" (3) that "the untimely disclosed evidence was relevant" to the plaintiff's case; and (4) "that is was reasonably foreseeable that [the spoliated evidence] would later be discoverable."

(Footnote omitted.) Costello v. City of Brigatine, 2001 U.S. Dist. LEXIS 8687 at *76-79 (D.N.J. 2001) (citing Scott v. IBM Corp., 196 F.R.D. 233, 248 (D.N.J. 2000).

Durst alleged that documents were not produced despite his demands and FedEx retention policies regarding these items, and the four essential factors had been established such that a spoliation inference was appropriate. FedEx argued that in order to obtain a spoliation inference, the documents in question must have been actually requested in discovery and the non-moving party either agreed to produce the documents or a court affirmatively ordered the other party to produce the documents. In addition, FedEx argued that at least one of two essential factors could not be established - Durst could not show that that FedEx actually suppressed or destroyed any evidence, or that the evidence was relevant to Durst's claims.

The court considered the various items and denied Durst's motion. In each case, Durst should have raised the issue during the discovery conference or with the judge, and if unsatisfied with the result filed a motion to compel production, or the four essential factors had not all been demonstrated.