Wrongful Death Plaintiff Awarded Attorneys’ Fees for Defendant Failure to Preserve ESI and Other Evidence
In wrongful death case McQueen et. al. v. Aramark Corp. et. al., Case No. 15-492 (D. Utah, Nov. 29, 2016), Plaintiff’s decedent, Alec McQueen, was killed in an incident at the Bullfrog Marina. On August 15, 2014, before filing the lawsuit, Plaintiff sent a litigation hold letter to Defendant demanding that Defendant preserve documents relevant to the incident. During discovery, Plaintiff deposed Defendant’s employee, Joe Ligon, who recalled that two work orders were done identifying electrical work performed on the dock prior to the accident. Plaintiff sent a discovery request to Defendant to produce these work orders, and Defendant responded that the work orders do not exist and that it had produced everything it had. Defendant’s counsel explained that Ligon had been mistaken and offered to produce work orders generated after McQueen’s death and a declaration from Ligon about the mistaken testimony. Plaintiff declined and filed a Motion to Compel, seeking production of the work orders as well as attorneys’ fees, arguing that Defendant had produced a Purchase Order Report showing that electrical work had been performed on the marina prior to the accident. The court entered an Order to Show Cause.
Defendant responded by admitting that certain ESI and other documents were destroyed because Defendant failed to tell the right people about the preservation requirement. It claimed it did not realize that it had not informed the right employees until December 2015; however, it still averred that the work orders that had been destroyed were not relevant to the case and that Plaintiff was not prejudiced by the loss. Defendant also argued that the evidence could be obtained through deposition testimony and through discovery by the electrical contractor that performed the work.
The court found that Defendant failed to take reasonable steps to preserve documents as required under FRCP 37. Defendant argued that it tried multiple times to recover lost ESI; however, the court noted that ESI was not the only thing lost, as paper documents were missing as well. Despite this finding, the court determined that there was no evidence of bad faith on Defendant’s failure to preserve ESI and other evidence, and left it to the trial judge to determine appropriate sanctions. The court also ordered Defendant to pay Plaintiff’s attorneys’ fees and costs.