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Court Sinks FRCP 37 Spoliation Motion Where Hard Drive Containing Purported Photos Goes Down With Barge

Posted on October 19th, 2016

Richard et. al. v. Inland Dredging Company, LLC, Case No. 15-0654 (W.D. La., Sept. 29, 2016) is a case filed by an injured crane operator, and his wife and child. The plaintiff worker fell from the crane due to   gaps in the steps and lack of a handrail on the crane. During discovery, Plaintiffs deposed the project manager, Dyer, who testified that there were four steps at the time of the incident and that after the accident, the steps were cut and a fifth step was added.

Dyer also testified that he “probably” took photos of the steps since this was his normal procedure.  However, he couldn’t be certain he took the photos because they would have been on his work laptop, which was no longer accessible since the laptop was in his office barge when it sank earlier that year. Dyer further testified that he was never asked for photographs prior to the sinking of the office barge. Plaintiffs filed a Motion for Sanctions, seeking an adverse inference instruction.

The court expressed that it was “troubled” that Defendant did not ask its employee Dyer for any photographs he may have taken of the accident scene. However, the court determined that spoliation sanctions were not appropriate because Plaintiffs had not established all the elements of FRCP 37(e): that the photos existed; that the photos were lost; that the loss resulted from Defendants’ failure to take reasonable steps to preserve the photos; and that the photos cannot be restored or replaced through additional discovery.

Specifically, the court ruled that Plaintiffs had not shown that the photos even existed in the first place. The court further held that the requisite intent was not shown, as the photographs (if they existed) were lost when the computer hard drive sank along with the barge. Plaintiffs did not show that Defendant caused the barge to sink as a result of any bad faith actions. The court denied Plaintiffs’ Motion.

ILS – Plaintiff ESI Discovery Experts

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