In Barry v. Big M Transportation, Inc., No. 1:16-cv-00167-JEO (Dist. Court ND Alabama, 2017), the United States District Court N.D. Alabama, Eastern Division determined that the failure to preserve a vehicle’s Electronic Control Module in a case involving a vehicle crash constituted spoliation of the evidence.
This action arises out of a motor vehicle accident that occurred in Cleburne County, Alabama. Plaintiffs David and Vanessia Barry (“Barrys”) were injured when a tractor-trailer driven by defendant Joshua Shaffer, an employee of defendant Big M Transportation, Inc. (“Big M”), struck their vehicle, which was stopped in the right lane of traffic along with two other vehicles. The Plaintiffs seek to recover compensatory and punitive damages for their injuries. The case is now before the Court on related motions. Big M and Shaffer have each filed a motion for summary judgment on the Barrys’ claims. The Barrys have filed a motion for partial summary judgment on the Defendants’ affirmative defenses of contributory negligence, assumption of the risk, and intervening cause, and for a “spoliation sanction” in the form of either a default judgment on the Defendants’ negligence liability or an order judicially establishing certain facts against the Defendants.
Shaffer asks the Court to strike Exhibit 16 to the Barrys’ motion for partial summary judgment, the sketch he drew of the accident when he was interviewed at Big M’s headquarters 24 to 48 hours after the accident occurred. Having been affirmatively identified by Shaffer as the sketch he drew of the accident shortly after it happened, the sketch is certainly evidence relevant to the issues raised in the pending summary motions. Shaffer’s motion to strike Exhibit 16 is denied.
The Barrys have moved the Court to impose a spoliation sanction against the Defendants for their failure to preserve the tractor’s Electronic Control Module (“ECM”) data following the accident. They have moved the Court to either enter a default judgment on the Defendants’ negligence liability or enter an order judicially establishing “the speed which Shaffer was driving and the maneuvers he made in the light most favorable” to the Barrys. In response, the Defendants argue that the “lack of preservation” of the ECM data was “well-reasoned and justifiable” and that, even if the failure to preserve the ECM data is not reasonable, it does not warrant the imposition of sanctions.
Spoliation is the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.
Rule 37(e) of the Federal Rules of Civil Procedure, which governs the preservation of electronically stored evidence, provides:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Here, the Court finds that Big M—but not Shaffer is guilty of spoliation. Big M’s corporate representative confirmed that it is Big M’s normal practice to retrieve the ECM data from a tractor if they know a collision is severe.
The Court also finds that Big M’s failure to preserve the ECM data has prejudiced the Barrys. The lost ECM data has deprived the Barrys of the best and most accurate evidence of the truck’s speed in the moments prior to the collision. Here, the Court is unwilling to impose the severe sanctions requested by the Barrys. First, the Court is not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data in this litigation. Big M has offered a plausible explanation for why it did not preserve the data: it was Big M’s understanding that the relevant ECM data would have been overwritten as soon as the truck was moved by the towing company and that the data would have been gone by the time the truck reached the tow yard. Under these circumstances, it was not unreasonable for Big M to complete the sale and transfer of the truck to Mack without first endeavoring to have the ECM data downloaded.
Second, although the accident was serious and it was reasonably foreseeable that litigation might ensue, it was Big M’s impression that the Barrys were at fault for the accident, as they had stopped their vehicle in a lane of traffic on the interstate.
Third, even if the Court were to determine that Big M’s real intent was to deprive the Barrys of the use of the ECM data in any ensuing litigation, the Barrys have not been prejudiced to such an extent that the severe sanctions they have requested would be warranted.
The Barrys claim that the ECM data is would be helpful in establishing their direct claims against Shaffer and their respondeat superior claims against Big M for negligence and wantonness. However, the Barrys have not shown that Shaffer bears any responsibility for the loss of the ECM data.
Based on the above, the Barrys’ request for spoliation sanctions will be denied to the extent they have asked the Court. However, as an alternative sanction, the Court will tell the jury that ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.