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Court Denies Motion for Sanctions Based upon Defendant’s Failure to Maintain Certain Data, Noting that Plaintiff’s Preemptive “Spoliation Letter” Cannot Make “End Run” Around FRCP

Posted in CASE SUMMARIES

Frey v. Gainey Transp. Servs., Inc., 2006 WL 2443787 (N.D. Ga. Aug. 22, 2006)

This personal injury litigation arose from an accident involving plaintiff’s car and a tractor-trailer driven by defendant Rogers while he was employed by defendant Gainey Transportation. Ten days after the accident occurred and before any litigation had been filed, plaintiff’s counsel sent a letter to Tim Kelly, the Safety Director at Gainey, demanding that Mr. Kelly preserve numerous and varied documents and materials fully described in a fifteen-page attachment to the letter. Plaintiff’s counsel asserted that any “destruction or alteration” of the material would be considered “spoliation of evidence.” In this decision, the court denies plaintiff’s motion for sanctions based upon Gainey’s failure to preserve any “QualComm” satellite tracking information.

Mr. Kelly could not specifically recall receiving the “spoliation” letter from plaintiff’s counsel, but the letter was signed for by a Gainey executive secretary. Mr. Kelly did not take any action at that time to preserve the material requested by plaintiff’s counsel, but rather turned the letter over to Gainey’s insurance company. Gainey had its own insurance company called Gainey Insurance; Mr. Libertore, the head of the insurance group, would request whatever information he wanted from individuals in Gainey’s safety department. Mr. Kelly does not specifically recall passing this letter to Mr. Libertore, and he does not recall Mr. Libertore requesting any information from the safety department. In a later deposition, Mr. Kelly stated that he did not believe the incident was serious because he had been told that plaintiff “got out of her vehicle and came back and started yelling at our driver.” Because Mr. Kelly did not believe the accident to be serious, he did not save the QualComm data.

In denying plaintiff’s motion for sanctions, the court considered five factors: (1) prejudice to the non-spoliating party as a result of the destruction of evidence, (2) whether the prejudice is curable, (3) the practical importance of the evidence, (4) whether the spoliator acted in good or bad faith, and (5) potential for abuse of expert testimony about evidence was not excluded. The court concluded that plaintiff was not irretrievably prejudiced by the lack of the QualComm data:

Unlike a situation where an airplane engine fails and parties will employ experts to analyze the actual engine to determine what caused the failure, here, the satellite tracking data is only part of the puzzle concerning Plaintiff’s negligence cause of action. The QualComm text messages were produced in discovery, as were Rogers’ driver qualification file, all of his driver’s logs, and all trip and operational documents related to the movement of cargo. . . . Rogers has testified as to his locations around the day in question. He has been cross-examined on whether he drove in excess of ten hours on that day.

Plaintiff has also contended that speed might have been a factor in the accident. It appears to be undisputed that the satellite communications, themselves, would not be able definitively to demonstrate the speed at which Rogers’ truck was traveling at the time of the accident. Further, Plaintiff and Rogers would be able to testify as to their belief as to the speed.

Moreover, plaintiff had essentially admitted that the QualComm satellite tracking data was not crucial for her claims.

The court noted that the parties had expended a great deal of time arguing about bad faith, and noted that the relevant inquiry had more to do with “where the culpability lies and not whether the spoliating party was acting in good or bad faith.” And, although the court could not find that Mr. Kelly had acted in bad faith, it concluded that, “at the very least, Mr. Kelly does have culpability because he made his own assessment that the accident was not serious enough to warrant preservation of the QualComm data.” The court continued:

In trying to balance that culpability against the low level of prejudice suffered by Plaintiff, there are several ways in which to consider the incident in question here. On the one hand, the fact that Plaintiff had hired a lawyer only ten days after the accident and that lawyer sent a fifteen-page letter to Gainey should have indicated to Mr. Kelly that litigation was certainly a possibility. That Mr. Kelly had been told Plaintiff had exited her car and appeared to be uninjured did not necessarily preclude litigation. The prudent course of action by Mr. Kelly would have been to preserve the information requested. On the other hand, Plaintiff’s counsel served the equivalent of interrogatories and requests for production on Gainey ten days after the accident before any lawsuit had been initiated. In fact, if the court were to count the requests in Plaintiff’s fifteen-page letter, it would likely exceed the number permitted under the federal rules. Such an extensive request for materials certainly would lend itself to an effort on any plaintiff’s part to sandbag a defendant in the event that any of those materials were not preserved. The legal system does not permit discovery to begin in a lawsuit until after a party has been served with a complaint and answered, so it is difficult to allow a potential plaintiff to make an end run around the Federal Rules of Civil Procedure by filing a preemptive “spoliation” letter. In the end, however, the court is not forced to choose between these alternatives because it finds that Plaintiff has secured other evidence that will enable her to argue that Rogers was negligent in causing the accident and further that the satellite tracking information is not relevant to her negligent supervision or punitive damages claim against Gainey.

Accordingly, the court denied plaintiff’s motion to strike the answer of defendants or for an adverse inference instruction.