Virginia Lawyers Weekly VA Lawyers Weekly
A federal court granted a motion for sanctions against a defendant truck driver who deleted data on a personal tablet that was mounted on his windshield when an accident occurred.
The court found the driver “had a duty to preserve the data on his personal tablet” as “he reasonably anticipated litigation because Plaintiff’s counsel sent two preservation letters” in 2018.
The court further found “a permissive adverse inference instruction” against the driver was warranted at trial because of the spoilation, meaning the jury may presume the lost data was “unfavorable” to the driver.
Senior U.S. District Judge Norman K. Moon authored the opinion in Le Doux v. Western Express Inc. (VLW 023-3-191) for the U.S. District Court for the Western District of Virginia.
Background
This negligence suit stems from a 2018 multi-car accident on Interstate 81 involving the plaintiff, Andre Le Doux V, and a Western Express tractor-trailer truck.
Soon after the accident, plaintiff’s counsel sent a preservation letter to the defendants, asking that they preserve “any personal computers used by Western Express’s employees” as well as electronically stored information from the Western Express tractor-trailer, including video and GPS data.
In December 2020, plaintiff’s counsel emailed defense counsel to inquire about a “personal computer/computer tablet mounted in the windshield or on the dashboard of” the cab. Defense counsel first said “[t]here was nothing mounted on the windshield of the truck,” but later sent an email offering corrected information after the driver, Ervin Worthy, identified it as his Rand McNally GPS and stated that it was “not on at the time of the accident.”
Emails in 2021 from defense counsel said Worthy was no longer in possession of the GPS tablet and that he “sold the tablet sometime in 2018 and ha[d] no idea who he sold it to.”
Per the opinion, Worthy confirmed in a 2022 deposition that the tablet was mounted on the windshield and that it was actually a Samsung Galaxy Tab A 8.0, which he used for music.
During the same deposition, Worthy said he gave the tablet to his girlfriend in 2021.
The tablet was submitted for a digital forensic examination in June 2022; findings showed that “most of the information on the table prior to June 2021” was missing and that the information “appear[ed] to have been removed from the device.”
Le Doux moved for sanctions alleging intentional spoliation of data on Worthy’s personal tablet.
Spoliation
Le Doux had to satisfy the four threshold requirements under Rule 37(e) in order for the rule to apply to the present case, Moon noted.
The first prong — the duty to preserve — was met because Worthy “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.”
“Worthy reasonably should have known that the personal tablet’s data might be relevant to the foreseeable litigation because he received several preservation letters about preserving electronic devices and his counsel told him that Plaintiff’s counsel was asking about the tablet mounted on his windshield in December 2020,” Moon pointed out.
The judge said the second requirement — that electronically stored information was lost — was met because the digital forensic analysis “found no data, expect for the calendar events’ timestamps, before June 2021 on Worthy’s personal tablet.”
“Worthy reasonably should have known that the personal tablet’s data might be relevant to the foreseeable litigation because he received several preservation letters about preserving electronic devices and his counsel told him that Plaintiff’s counsel was asking about the tablet mounted on his windshield in December 2020.”
— Senior U.S. District Judge Norman K. Moon
“Thus,” Moon wrote, “the data on his personal tablet, except for calendar events’ timestamps, is lost.”
The third requirement of Rule 37(e) requires parties to take reasonable steps to preserve data, which Moon found the defendant did not do.
“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),” Moon wrote.
And since the information on the tablet cannot be restored or replaced, the final requirement of Rule 37(e) was satisfied.
“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, which showed that the personal tablet’s data prior to June 2021 … had been removed and was unretrievable,” Moon concluded.
As such, spoliation occurred and Rule 37(e) applied to the lost data, the judge said.
Sanctions
For the court to impose sanctions, it must find either prejudice to another party from the loss of information or that the party acted with intent to deprive another party of the information’s use in litigation.
“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,” Moon wrote.
The judge noted that the defendant “misrepresented to his counsel the true nature of the tablet by referring to it as a GPS tablet” and that he initially referred to the tablet as his GPS tablet in his 2022 deposition.
“After being on notice that Plaintiff’s counsel was seeking the tablet mounted in his windshield, he deleted the data on his personal tablet and gave it to his girlfriend in early 2021,” Moon noted. “Thus, he deleted his personal tablet’s data after — and within several months of — learning that Plaintiff’s counsel was attempting to collect data on the tablet mounted on his windshield.”
The court found that, in order to redress the loss, “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,” Moon concluded.
