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Adverse Inference Instruction Against Trucking Company for Failure to Preserve Data

Posted on May 11th, 2016

O’Berry et. al. v. Turner, et. al., Consolidated Case Nos. 15-00064/15-00075 (M.D. Ga., April 27, 2016) is a consolidated litigation arising out of a tractor trailer accident.  Plaintiffs were a driver and a passenger in a car which was struck by the tractor trailer truck driven by Defendant Turner, who suddenly swerved into their car’s lane.  The car was run off the road and slammed into a light pole.  At trial, the court imposed an adverse inference instruction against Defendants due to discovery infractions.

During discovery, Plaintiffs sought Turner’s driving log as well as ESI regarding the truck.  The accident occurred in June 2013, and in August 2013, Plaintiffs’ counsel faxed a litigation hold letter to Defendants requesting preservation of driver logs, as well as information from and about the truck.  Defendants’ counsel responded to the letter, promising to preserve evidence.  However, after multiple discovery demands, Plaintiffs still did not receive the driving logs and the truck information from Defendants. Eventually, Defendants admitted that the information had been inadvertently destroyed.  Plaintiffs filed a Motion for Sanctions, including request for adverse inference instruction.

Defendants submitted that prior to receiving the litigation hold letter they had printed the driving log as well as the data from the truck and placed the information in a folder, but did not save the information in electronic format.  The hard copy documents were then packed in a box for a move to a new office, at which time the folder containing the hard copies went missing.  When Defendants contacted PeopleNet, the site responsible for storing the truck’s data and the driver logs, they were told the information had been deleted pursuant to PeopleNet’s retention policy.

The court looked at FRCp 37(e) as most recently amended, noting that a duty to preserve information arises when the preserving party should have reasonably anticipated litigation.  The court found that the duty arose at least on August 18, 2013, when Defendants received the litigation hold letter.  The court found that the act of printing the data and keeping it in a folder was a “minimal” effort to preserve evidence.  The court found that Defendants’ acted with intent to deprive Plaintiffs of the information, as they did not treat the documents with the appropriate level of importance and was a failure to preserve data.

The court ordered an adverse inference instruction to the jury that the missing data should be presumed to have been unfavorable to Defendants.

ILS – Plaintiff Electronic Discovery Experts

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