Virginia Lawyers Weekly VA Lawyers Weekly
Where a truck driver sued for his alleged negligence in a multi-car accident deleted data on his personal tablet mounted on his windshield, gave the tablet to his girlfriend and misrepresented information about the tablet, the jury may presume that the lost data was unfavorable to the driver.
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. Le Doux now moves for sanctions against defendants for intentional spoliation of data on Worthy’s personal tablet.
Spoliation
Under Rule 37(e), a movant must satisfy four threshold requirements before a court decides if any spoliation sanction is appropriate: (1) electronically stored information, or 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.
The court finds that Worthy had a duty to preserve the data on his personal tablet. First, he reasonably anticipated litigation because plaintiff’s counsel sent two preservation letters in September 2018. Second, Worthy reasonably should have known that the data on his personal tablet mounted on his windshield at the time of the multi-vehicle accident might be relevant to the foreseeable litigation.
As to the second requirement, Digital Shield, during its digital forensic analysis found no data, except for the calendar events’ timestamps, before June 2021 on Worthy’s personal tablet. Thus, the data on his personal tablet, except for calendar events’ timestamps, is lost.
Third, Worthy admits that he deleted the lost data on his personal tablet and then gave it to his girlfriend. Even though Worthy provided his personal tablet to plaintiff’s counsel for a forensic analysis in 2022, the record does not support that Worthy took reasonable steps to preserve his personal tablet’s data, considering that Worthy deleted the data in 2021 and withheld information about his personal tablet in December 2020 and then again during his March 2022 deposition (although he eventually acknowledged during his deposition that the tablet mounted on his windshield was his personal tablet rather than his GPS tablet).
Finally, plaintiff’s counsel has made a good faith effort to replace or restore the lost ESI by asking defense counsel several times about a silver-colored personal computer tablet in December 2020 and by conducting a digital forensic examination of Worthy’s personal tablet. Accordingly, the court finds that spoliation occurred, and that Rule 37(e) applies to the lost data on Worthy’s personal tablet.
Sanction
After finding that spoliation occurred under Rule 37(e), 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, the record supports by clear and convincing evidence that Worthy acted in bad faith and intentionally deprived plaintiff of the data on his personal tablet. After being shown a picture of the tablet on his tractor-trailer’s windshield, Worthy misrepresented to his counsel the true nature of the tablet by referring to it as a GPS tablet.
He also misled plaintiff’s counsel during his March 2022 deposition by initially referring to the tablet as his GPS tablet. Moreover, he was not forthcoming during his deposition. Worthy’s act of deleting the data on his personal tablet further supports that he acted to intentionally deprive plaintiff of this information.
To redress this loss, the court finds that a permissive adverse inference instruction against Worthy is proportionate to the prejudice and harm experienced by plaintiff. The court will thus instruct the jury that it is permitted, although not required, to presume that the lost data on Worthy’s personal tablet was unfavorable to Worthy.
Plaintiff’s motion for sanctions granted.
Le Doux v. Western Express Inc., Case No. 6:20-cv-51, April 7, 2023. WDVA at Lynchburg (Moon). VLW 023-3-191. 17 pp.
