It goes without saying that success in a lawsuit often depends on the evidence. Although a plaintiff is not always certain that he or she will have access to the best possible evidence, one does expect that the opposing party will not, through either neglect or willful obstruction, allow material evidence to be lost. Even though the effects of lost evidence are not easy to cure, court do have means of penalizing parties that fail to comply with their obligations to preserve evidence. For instance, in a recent decision, O’Berry v. Turner, a federal judge imposed sanctions on several defendants in a tractor-trailer accident case for failing to produce material related to the driver and tractor-trailer involved in the accident.
Turner started with a June 2013 traffic accident in Homerville, Georgia. While proceeding west along Dame Avenue in Homerville, a vehicle being operated by one of the plaintiffs in this action was struck by a tractor-trailer, which the driver of the car alleged swerved into his lane without warning. The collision caused the car to veer off the road and into a light post. As a result of the accident, the driver and another occupant in the vehicle sustained various injuries. The truck was being operated by an employee acting on behalf of ADM Trucking, Inc. and Archer Daniels Midland Company. Following the accident, the driver and the other occupant brought suit against the driver of the tractor-trailer, ADM, and Archer Daniels. In August 2013, counsel for the plaintiffs sent a spoliation letter to ADM, requesting that the defendants make an effort to preserve various evidence related to the driver and the trailer involved in the accident. Counsel for the defendants responded to this request and stated that the defendants would take all measures necessary to assure the preservation of pertinent evidence. Eventually, the plaintiffs made a discovery request to the defendant, requesting, inter alia, the truck driver’s driver log and all electronically stored information related to the tractor-trailer involved in the accident. The defendants failed to comply with the request, and the plaintiffs moved for sanctions against ADM and Archer Daniels.
At a hearing on the issue, a former loss control manager at ADM testified that he had begun collecting this information following the accident, even before receiving the spoliation letter from plaintiff’s counsel. The information was kept in a manila folder along with other pertinent information related to the accident. In November 2013, the loss control manager was in the process of moving to a different building, and he testified that the manila folder including this information was placed in a box. Prior to the completion of the move, the loss control manager went on medical leave, which lasted until January 2014. The boxes he had previously packed had been moved by maintenance workers to his new office, and he claimed that the folder containing the pertinent information was lost during the move. By the time he received the new discovery demand in 2016, this information had already been deleted from other electronic sources and could not be recovered.
The preservation of electronically stored evidence is governed by Federal Rule of Civil Procedure 37(e). In order for Rule 37(e) to be applied, four conditions must be met: (1) there must be a duty to preserve the electronic information at issue; (2) the party to be sanctioned must have failed to take reasonable steps to preserve the information; (3) the information must have been lost as a result of this failure to take reasonable measures; and (4) the information cannot be recovered through additional discovery. See Fed. R. Civ. P. 37(e). The trial court found that Rule 37(e) clearly applied in this case, for the duty of preservation was triggered, at the latest, when the defendant received the spoliation letter in 2013, and the defendants’ efforts to persevere this pertinent information—specifically, keeping a single, printed copy in a manila folder—fell far below the requirements for reasonableness.
Even if Rule 37(e) applies, however, sanctions may only be imposed in two circumstances. First, if the information is lost as a result of an intentional action, the trial court may create an unfavorable inference based on the information lost, may instruct the jury that it may or must presume the lost information was unfavorable, or may enter default judgment in favor of the other party. See Fed. R. Civ. P. 37(e)(2). Second, even when the loss of information is not shown to be intentional, the trial court may still impose sanctions, but the trial court may only do so when it is shown that the other party was prejudiced by the loss of information, and the sanction imposed may be no greater than necessary to correct such prejudice. See Fed. R. Civ. P. 37(e)(1).
In this case, the court found that there was sufficient evidence of intent to deprive the plaintiff of the evidence at issue to impose sanctions under Rule 37(e)(2). Indeed, the court noted: (1) that the defendants did not have a formal evidence preservation policy; (2) that it was irresponsible to both keep only a single printed copy of such pertinent information and to have it transported in such a haphazard manner; (3) that it was odd that defendants’ counsel did not request this information until pressured to do so in January 2016; and (4) that the defendants did not in any way take additional measures to ensure the preservation of evidence following the receipt of the spoliation letter. In light of these circumstances, which the court noted went beyond mere negligence, the court concluded there was sufficient evidence of the defendants’ intent to deprive the plaintiff of the records at issue, and it accordingly imposed an adverse inference instruction against the defendants. Specifically, the court held that it would instruct the jury that the evidence lost must be presumed to have been unfavorable to the defendants.
Even though it is often more desirable to have access to all the possible evidence, Turner shows that zealous representation can help ease the prejudice that can arise from the loss of pertinent information. Indeed, the compulsory adverse inference instruction the court imposed against the defendants in this case helps assure that the plaintiff will not be unduly limited in succeeding at trial. Even in seemingly straightforward accident cases, complex issues, both evidentiary and substantive, can arise, and accordingly anyone who has been injured as a result of possible negligence should consider finding competent legal counsel prior to initiating a legal proceeding. The Atlanta truck accident attorneys at Christopher Simon Attorney at Law have considerable experience representing injured Georgia drivers, and they are prepared to assist you with a possible claim. Indeed, if you believe you have a possibly meritorious claim and would like to discuss the options you may have for legal recovery, feel free to contact us to arrange a free case consultation.
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