Court Denied Plaintiff’s Motion for Sanctions After Finding Rule 37(e) Did Not Support Adverse Inference Instruction
- ILS Team
In HAMRICK v. SPLASH TRANSPORT, INC., ET AL., No. 3:20-CV-00417-TRM-DCP (E.D. Tenn. Jan. 31, 2022), before the Court was Plaintiff’s Motion for Sanctions against Defendants.
The action arose from a vehicular incident. Defendant Elmehalawy was the truck driver for Splash Transport, Inc. (“Splash”). Defendant James was the truck driver for Defendant Nandleen LLC.
Plaintiff alleged as follows: On July 27, 2022, Defendant James was driving his freight truck when he pulled into the emergency lane for a non-emergency. Defendant Elmehalawy was also operating a freight truck, nearing Defendant James and his freight truck. Defendant Elmehalawy merged from the middle lane to the right lane and then into the emergency lane that was occupied by Defendant James’ freight truck. Defendant Elmehalawy tried to veer out of the emergency lane and back onto the highway, but he ended up hitting Defendant James’ truck. Defendant Elmehalawy’s truck swerved and veered into traffic in the adjacent lanes, leading him to hit a third freight truck. Plaintiff stated that he was injured as the result of the crash.
The parties disputed whether Defendant James lawfully proceeded into the emergency lane. During discovery, Plaintiff requested that Defendant Nandleen produce text messages between it and Defendant James. Plaintiff stated that the text messages would reveal the true purpose of why Defendant James pulled over into the emergency lane.
Plaintiff argued that Nandleen’s owner, Omozokpea, testified that he wiped data from Omozokpea’s phone and that the Court should enter an order that granted sanctions against Defendant Nandleen in the form of adverse jury instruction because the text messages would have been favorable to Plaintiff.
Defendant Nandleen responded that the Court should deny Plaintiff’s Motion for Sanctions because “(1) Defendant James is going to produce the text messages, (2) the text messages do not concern Defendant James’ decision to pull into the emergency lane, (3) Plaintiff will not suffer prejudice because the texts will be produced and they are irrelevant, and (4) it had no intent to deprive Plaintiff of the use of the text messages in this litigation.”
Defendant Nandleen stated that the text messages related to pickup and delivery locations, the bill of lading, the contents of the load being delivered, and/or proof of delivery, as Omozokpea testified during his deposition. In addition, Defendant Nandleen argued that there were simply no texts that would concern Defendant James’ reasons for pulling over because Defendant James called Omozokpea to discuss after pulling over into the emergency lane.
Plaintiff relied on Federal Rule Civil Procedure 37(e) for his request for an adverse inference. Rule 37(e) provides that if electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, the court, upon finding prejudice, may order measures no greater than necessary to cure the prejudice. The court, after finding that the party acted with the intent to deprive another party of the information’s use in the litigation, may presume that the lost information was unfavorable to the party, instruct the jury that it may or must presume the information was unfavorable to the party, or dismiss the action or enter a default judgment.
The Court found that Rule 37(e) did not support an adverse inference instruction for several reasons. First, as Plaintiff stated, the critical issue was why Defendant James pulled off the road and into the emergency lane. During Defendant James’ deposition, he testified that he pulled over because he felt like he was going to vomit and that he called, presumably Omozokpea, and was struck while he was on the phone. But there was no evidence that Defendant James texted Omozokepea about his reason for pulling over.
Second, as Defendant Nandleen stated, Plaintiff was able to obtain the discovery elsewhere through Defendant James’ phone, and that the text messages between Defendant James and Defendant Nandleen – which were not about Defendant James’ reason for pulling over – have now been produced.
Finally, the Court noted that even if there were text messages between Omozokpea and Defendant James about the reason why Defendant James pulled over in the emergency lane and Defendant James no longer had those text messages, it was not clear if Omozokpea destroyed any relevant messages.
In response to questions about his efforts to preserve any messages, Omozokpea testified that he backed up his cell phone data to the iCloud. However, it did not appear to the Court that the parties had followed up to determine whether the deleted information on the phone was saved elsewhere. Accordingly, the Court found Plaintiff’s request for sanctions not well taken and motion was denied.