Spoliation Sanction Motion for Erasure of Truck Accident ECM Data Denied Due to Lack of Custody, Insufficient Evidence
Wiedeman v. Canal Insurance Company et. al., Case No. 15-4182 (N.D. Ga., June 9, 2017) arises out of a truck accident between Plaintiff and Defendant Walter Dorn, a truck driver and employee of Defendant H & F Transfer. The truck was leased from non-party Salem Leasing. On the day of the collision, the investigating police officer found Plaintiff to be at fault in the accident and ticketed him for failure to yield to a red light. Plaintiff told the officer that he did not know what he was thinking when he ran the red.
Three days after the accident, H & F returned the truck to Salem. Salem then performed an industry-standard preventative maintenance check before leasing to the next customer, which resulted in a reset and deletion of non-maintenance data from the truck’s electronic control module (ECM). Salem claims it was not aware this reset would occur. Later, H & F hired an inspector, John Bethea, to inspect the truck. In his expert report, he stated that the ECM reported no sudden deceleration and that any sudden deceleration data could not have been overwritten because it was never captured by the ECM.
Three months after the accident, Plaintiff sent H & F a litigation hold letter but did not send one to Salem. In August 2016, after filing suit, Plaintiff filed a first motion for discovery sanctions. However, the court determined it could not rule on the motion, since information was required from the laptop Bethea used during his inspection. Upon the obtaining and review of the hard drive from inspector Bertha’s laptop, it was determined that prior to the reset not only had the ECM been accessed between the accident and the inspection, but also that the ECM had recorded three sudden decelerations. Plaintiff filed a renewed Motion for Sanctions. Defendant H & F argued that it should not be held responsible, since the reset occurred after the ECM was out of its custody and control. Salem claimed that at the time of the reset of the ECM that litigation was not reasonably foreseeable, and that it had no duty to preserve the ECM data.
The court denied Plaintiff’s sanctions motion. As a threshold matter, the court found that allegedly spoliated evidence must be in the possession, custody or control of the party accused. Here, H & F no longer had access to the ECM when the data was overwritten, so sanctions against H & F were not appropriate. As for Salem, the court found that on the day that the ECM was reset litigation was not reasonably foreseeable, and that Salem did not have a duty to preserve the ECM data. These findings were based upon evidence submitted that Salem believed the cause of the accident was undisupted-namely Plaintiff’s running the red light – allaying concern about Plaintiff suing Salem over the accident. Plaintiff attempted to counter by arguing that because the trucking Defendants investigated the accident, they knew litigation was likely. The court noted, however, that Plaintiff could not identify what specific actions Defendants took before the day the ECM data was reset that qualify as an “investigation” which would substantiate this argument. The court disposed of Plaintiff’s final argument, that Defendants falsified data for Bethea’s report, as mere speculation.