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Adverse inference instruction ordered in accident suit

Where a man suing for his alleged injuries in an automobile accident deleted text messages and emails on his second cell phone covering a period of two years, and discarded the phone before defendants could have their own expert conduct a deletion analysis on the phone, the jury may presume that the lost cell phone evidence was unfavorable to the man.

Background

On Aug. 11, 2018, Judy M. Paul, Andre G.H. Le Doux V and Ervin Joseph Worthy, who was operating a Western Express tractor-trailer, were involved in a multi-vehicle accident on Interstate 81. On Aug. 10, 2020, Le Doux filed a complaint, alleging negligence, negligent hiring and negligent retention against defendants, and seeking damages for injuries related to the accident.

Defendants claim that Le Doux intentionally deleted text messages and emails on his second cell phone from Aug. 11, 2018, to Aug. 10, 2020, and discarded his second cell phone before defendants could have their own expert conduct a deletion analysis on the phone.

Standard

Rule 37(e) of the Federal Rules of Civil Procedure provides the legal framework for evaluating whether a party failed to preserve electronically stored information, or ESI, for another’s use in litigation. Under Rule 37(e), a movant must satisfy four threshold requirements: (1) ESI should have been preserved; (2) ESI was lost; (3) the loss was due to a party’s failure to take reasonable steps to preserve the ESI and (4) the ESI cannot be restored or replaced through additional discovery.

Duty

Le Doux had a duty to preserve the cell phone evidence. First, he reasonably anticipated litigation when he obtained the second cell phone on Oct. 29, 2018, because prior to that date, he had obtained counsel and received two preservation letters. Second, he reasonably should have known that the text messages and emails from Aug. 11, 2018, to Aug. 10, 2020, on the second cell phone might be relevant to the foreseeable litigation.

For the second requirement, the record supports, and Le Doux does not dispute, that Le Doux’s third-party vendor was unable to retrieve any electronic communications from Aug. 11, 2018, to Aug. 10, 2020, on the second cell phone, and that after the vendor’s analysis, the second cell phone was discarded.

Third, Le Doux admits that he deleted text messages and emails on his second cell phone, that he did not have cloud storage to back-up those messages and that his third-party vendor was unable to retrieve the electronic communications from Aug. 11, 2018, to Aug. 10, 2020, on his second cell phone. The record does not support that Le Doux took any reasonable steps to preserve the lost electronic communications on his second cell phone. In addition, Le Doux failed to take reasonable steps to preserve the second cell phone.

Regarding the fourth element, Le Doux contends that defendants could have subpoenaed Le Doux’s son, daughter-in-law and brother, who were the primary people he communicated with, for any text messages or emails. However, issuing subpoenas against each of these individuals would likely only result in defendants receiving pieces of the lost electronic communications. In light of the steps taken by defendants to retrieve the lost cell phone evidence through discovery requests, discovery orders and attempted forensic analysis, the court finds that it was not necessary for defendants to subpoena these individuals in order to show that the information cannot be restored.

Sanctions

The court may only impose sanctions if it finds either (1) prejudice to another party from the loss of information under Fed. R. Civ. P. 37(e)(1) or (2) that the party acted with intent to deprive another party of the information’s use in litigation under Fed. R. Civ. P. 37(e)(2).

Here, it is undisputed that Le Doux deleted electronic communications on his second cell phone and discarded his second cell phone. Furthermore, several pieces of evidence support that he destroyed this evidence to intentionally deprive defendants of its use in litigation. However, while the cell phone evidence may have been relevant and favorable to defendants on the issues of Le Doux’s injuries and damages, it is not the only evidence supporting their defense, and as such, dismissal of the case would be disproportionately harsh to Le Doux.

Accordingly, the court finds that a permissive adverse inference instruction against Le Doux is proportionate to the prejudice and harm experienced by defendants. The court will thus instruct the jury that it is permitted, although not required, to presume that the lost cell phone evidence was unfavorable to Le Doux.

Defendants’ motion for sanctions granted in part, denied in part.

Paul v. Western Express Inc., Case No. 6:20-cv-51, March 23, 2023. WDVA at Lynchburg (Moon). VLW 023-3-149. 16 pp.

VLW 023-3-149