Jones v. Hirschbach Motor Lines, Inc.
| Decision Date | 20 September 2022 |
| Docket Number | 1:21-CV-01004-MAM |
| Parties | DENNIS OWEN JONES, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC., AN IOWA CORPORATION; AND CHARLES RANDALL MULKEY, Defendant. |
| Court | U.S. District Court — District of South Dakota |
In ruling on Plaintiff, Dennis Owen Jones's (Jones) motion to compel answers to interrogatories and document requests the Court ordered Jones and Defendant, Hirschbach Motor Lines, Inc. (Hirschbach), to brief the issues of spoliation and sanctions involving a specific document request.[1] That request sought all statements taken that pertained to the disputed vehicle accident no matter what form they were in.[2] Hirschbach deleted certain investigative phone recordings after Jones wrote and asked the company to preserve accident-related information.[3] Having considered both parties' briefs and submissions,[4] the Court grants spoliation sanctions.
This case revolves around a collision between two sets of vehicles, the afternoon of March 3, 2020, on a highway in rural Brown County, South Dakota.[5] Jones was operating a tractor and pulling a feed wagon.[6] Defendant, Charles Randall Mulkey (Mulkey), was driving a Hirschbach semi-truck, with a trailer attached to it, behind Jones in the same lane of the highway.[7] As Jones began to turn right, Mulkey collided with the rear end of Jones's wagon.[8]
After the accident that same day, one of Hirschbach's managers Joseph Karberg, communicated with Mulkey's wife, Damian Bahr, first responders, and others,[9] about the crash on Hirschbach's recorded landline office telephone. By its own policy, Hirschbach records inbound and outbound calls and then automatically deletes the recordings after six months.[10]
On August 25, 2020 - less than six months after the collision - Jones's counsel sent his Hirschbach counterpart a letter requesting preservation of, among other things, “all logs, reports, or records regarding the collision . . .,” “[s]tatements of any and all witnesses taken after the collision . . .,” and all “electronically stored information (‘ESI') and other data or information generated by and/or stored on [Hirschbach's] computers and storage media ....”[11] The letter also directed that Hirschbach (1) “take all steps necessary to prevent the destruction, loss, . . . or alteration of any . . . ESI”; (2) “initiate a litigation hold for potentially relevant ESI”; (3) “secure and audit compliance with that [] hold”; and (4) “preserve any means necessary to access . . . and (if necessary) reconstruct any ESI.”[12] “Adequate preservation of ESI,” the letter said, “requires intervention to prevent loss due to routine operations” and for Hirschbach to “employ proper techniques to safeguard all such evidence.”[13] Nine months later, Jones served Hirschbach with discovery which included Document Request No. 4.[14] That Request asked Hirschbach to produce “all statements taken in connection with the crash, in whatever form [they] exist[ed], i.e. recorded, written, electronic, etc.”[15] Hirschbach initially objected to the Request on privilege grounds and said that “no statements have been obtained.”[16] When Hirschbach did not timely respond to inquiries and fully comply with requests for information,[17] Jones moved to compel.[18] Hirschbach maintains that its failure to preserve the recordings was inadvertent, unintentional, and did not prejudice Jones.[19] The mistake, Hirschbach says, occurred because Jones never expressly requested that the recordings be preserved and was not done to frustrate the discovery process or suppress the truth.[20]
Spoliation is “[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document.[21] A court's power to impose spoliation sanctions comes from the rules of civil procedure or, when the rules are not applicable, from the court's inherent authority under common law.[22] Here, a particular civil rule applies[23] and thus “forecloses reliance on inherent authority.”[24]
Federal Rule of Civil Procedure 37(e) allows a court, in its discretion, to fashion an appropriate remedy for the spoliation of ESI.[25] Before doing so, the court must find that (1) the ESI was lost; (2) the ESI “should have been preserved in the anticipation or conduct of litigation”; (3) a party “failed to take reasonable steps to preserve” the ESI; and (4) the ESI “cannot be restored or replaced through additional discovery.”[26] If the court finds that the party “acted with the intent to deprive another party of the information's use in the litigation,” then the court may impose more severe measures than those when only prejudice is found.[27] “The remedy should fit the wrong,” and such measures should not be used when the lost information “was relatively unimportant or a lesser measure . . . would be sufficient to address the loss.”[28]
Both parties acknowledge that the relevant landline recorded phone calls between Hirschbach employees and witnesses to the accident and its aftermath were automatically deleted.[29] The recordings cannot be resurrected and are lost.
A party's duty to preserve evidence in its possession arises at the first reasonable sign of litigation.[30] Hirschbach's duty to preserve relevant evidence was triggered when the crash occurred and most certainly when the company's counsel received Jones's preservation of accident information letter. Although Hirschbach did not have to keep every type of ESI, the company needed to preserve the ESI of its “key player” employees.[31]
Hirschbach's preservation duty encompassed Karberg's phone recordings. As a division manager, Karberg worked with the claims department in the investigation of accidents involving company vehicles, making him a “key player.”[32] The deleted recordings from his office contained conversations he had with Mulkey's wife (who allegedly was on the phone with Mulkey at the time of the collision), Bahr, officers on the scene, and others.[33] Some or all of these conversations could have generated material evidence that Jones could use in the litigation, especially given the Court's previous determination that the information in them was not privileged and protected from disclosure.[34]
Rule 37(e) only applies if a party failed to take reasonable steps to preserve the lost ESI.[35] When gauging the reasonableness of a party's preservation steps, a court should consider the party's sophistication, the staff devoted to and their familiarity with preservation efforts, and counsel's awareness of the client's information systems and digital data.[36]
Presumably, Hirschbach took no steps to prevent the recordings from automatically deleting under its six-month retention policy.[37] Hirschbach posits that it did not know it should have preserved the recordings because Jones's preservation letter was too vague to alert the company specifically to the phone call recordings.[38] Aside from the general duty to preserve, which arose well before the recordings automatically deleted, the preservation letter Hirschbach received prior to the expiration of the sixmonth retention period specifically referenced ESI, records, and statements of witnesses.[39] Hirschbach had ample notice of its duty to preserve the recordings and could have easily sequestered to them.[40]
What's more, as a nationwide trucking company with 1,700-1,800 drivers, its own IT and claims departments, and in-house counsel,[41] Hirschbach knew, or should have known, of the recorded calls and its duty to preserve the recordings but failed to prevent their destruction.[42] The company recorded all landline calls as a normal business practice, retained the recordings for six months, and had an accident review committee analyze its drivers' recorded calls and statements.[43] So on a spectrum of sophistication and resources, Hirschbach sits on the higher end.
A court must next determine whether alternative discovery can satisfactorily replace the lost ESI.[44] The court may authorize additional discovery under the civil rules,[45] but any efforts at replacement through discovery should be “proportional to the apparent importance of the lost information to claims or defenses in the litigation.”[46]
No known backups or means exist to replace the lost phone recordings. Hirschbach did, however, produce Karberg's call log and the brief notes he made in it.[47]And Jones deposed the percipient witnesses to the crash.[48] But the log, Karberg's notes, and the depositions are no substitutes for the phone calls made within a day of the accident. Recollections fade and can change. In the final analysis, the evidence Hirschbach produced and the depositions conducted are not suitable replacements for the recordings Hirschbach erased. The Court therefore finds that spoliation has occurred and turns to evaluate whether sanctions are appropriate.
A court has the “discretion to choose the most appropriate sanction under the circumstances.”[49] There are two sanction pathways. One requires a finding of prejudice to a party from lost information and allows for sanctions “no greater than necessary to cure the prejudice.”[50] The other requires a showing of “intent to deprive [a] party of the information's use in the litigation” before dismissing an action or giving an adverse jury instruction.[51]
1. Prejudice
While the Court has discretion to assess...
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