Griffin et al v. New Prime, Inc. et al

Filing 149

OPINION AND ORDER DENYING Plaintiffs' 129 Motion for Sanctions. Signed by Judge William S. Duffey, Jr on 1/13/2014. (anc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DOUGLAS GRIFFIN et al.,
Plaintiffs,
v.

1:10-cv-01926-WSD

NEW PRIME INC. d/b/a PRIME,
INC. et al.,
Defendants.
KATINA LEWIS et al.,
Plaintiffs,
v.

1:10-cv-01228-WSD

NEW PRIME INC. d/b/a PRIME,
INC. et al.,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Sanctions [129] in
Griffin et al. v. Prime Inc. et al., No. 1:10-cv-01926 (the “Griffin case”), and
Plaintiffs’ Motion for Sanctions [127] in Lewis et al. v. Prime Inc. et al., No. 1:10cv-01228 (the “Lewis case”).

I.

BACKGROUND
A.

Facts
1.

Trotter’s Testimony

In depositions taken in October 2010 and October 2011, Defendant Trotter
(“Trotter”) testified that (1) he was asleep in the sleeping compartment for several
hours immediately preceding the accident, (2) he awoke in the moments prior to
the accident, got dressed and began to move to the front of the cab, (3) as he pulled
open the drapes separating the sleeper berth from the cab, he observed Defendant
Hassane (“Hassane”) travelling at a steady pace and maintaining the same speed,
(4) operating the rig in 10th gear, and (5) he felt the collision as he was proceeding
to the cab of the truck. See the Court’s Op. and Order on Defs. Mot. for Summ. J.
and Pls. Mot. for Supplemental Br., at 6.
On November 26, 2012, Defendant Trotter testified at a trial in Missouri
based on the same motor vehicle accident that is at issue in this action. Id. The
Missouri action was brought by another passenger in the van that was injured. At
that trial, Trotter stated that, just before the accident, Hassane had pulled over to
the shoulder of the highway and stopped so he could change driving positions with
Trotter. Id. Trotter testified further that he had told Hassane to continue to the
next interstate exit before they switched, and that Hassane proceeded to pull back

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onto Interstate 20. Id. Trotter recalled that the collision occurred 20 or 30 seconds
later. Id.
On November 18, 2013, the Plaintiffs in this case deposed Trotter for the
third time. At that deposition, the Plaintiffs learned that Trotter was not employed
at Prime before being deposed in this matter for the second time on October 12,
2011. Pls. Ex. 7 at 43-45. At the 2013 deposition, Trotter testified that he owed
Prime Inc. $8000, and that Prime rehired him and forgave his $8000 debt shortly
before he was deposed in this matter for the second time in October 2011. Id.
Trotter stated that in July 2012, Trotter’s employment at Prime was terminated. Id.
at 105.
On December 31, 2013, the Plaintiffs in the Griffin case moved for sanctions
against the Defendants. Plaintiffs argue that the Defendants’ answer should be
struck and a default judgment should be entered against the Defendants. Plaintiffs
claim that the alleged forgiveness of his $8000 debt when Trotter was rehired
constituted a bribe for Trotter’s false testimony at his second deposition in
October, 2011. On January 6, 2014, the Defendants replied to the Plaintiffs’
Motion for Sanctions. Defendants argue that there is no evidence that Prime
bribed Trotter, and further argue that Trotter testified that Prime did not influence
his testimony at the second deposition, which was consistent with his testimony at

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his October 2010 deposition. Trotter’s testimony in October 2011 regarding the
accident was consistent with the account he gave at the October 2010 deposition.
On May 28, 2013, the Plaintiffs in the Lewis case moved for sanctions
against the Defendants. In the Lewis case, the Plaintiffs also request the Court to
strike the Defendants’ answer and enter a default judgment against the Defendants.
They argue that Prime orchestrated a fraud on the Court because Trotter admitted
in his trial testimony that Prime’s lawyer, at some point, knew that Hassane had
pulled over to the shoulder of the highway and stopped so he could change driving
positions with Trotter. The Plaintiffs claim further that Prime’s lawyer allowed
Trotter to testify falsely when Trotter was deposed in this case in 2010 and 2011.
The Plaintiffs also claim that Prime failed to produce a logbook entry documenting
that Hassane pulled over to the shoulder of the highway and stopped so he could
change positions with Trotter. The Plaintiffs allege that the Defendants’ failure to
produce the logbook entry, or to explain the absence of the logbook entry, is
evidence that Defendants’ intended to conceal the truth.
The Defendants deny that Trotter was “bribed” for his testimony and deny
that Prime’s lawyer encouraged Trotter to testify falsely when Trotter was deposed
in this case. The Defendants suggested that Trotter changed his version of events
only after Trotter was coached by a lawyer, who represented the plaintiff in the

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Missouri action. The Defendants speculate that Trotter may have changed his
version of events because Trotter wanted to file a wrongful termination suit against
Prime.1
1.

“Black Box” Data2

The Electronic Control Module (ECM), or the “black box” data for tractortrailers, retains data regarding “when the last stop occurred, the vehicle’s speed
over a period of time, brake application, engine RPM, and whether the cruise
control is on or off, among many other things.” P’s Mot. for Sanctions at 3.
Plaintiffs allege that the Defendants intentionally destroyed the “black box” data
on the tractor-trailer by knowingly moving the tractor-trailer forward after the
collision.3 The Plaintiffs also allege that Donald Lacy (“Lacy”), the director of
safety at Prime, testified as an expert witness in an unrelated case and stated in that
case that “the failure to [download and preserve the ECM data] constitutes

1

The Court will collectively address in this Order the allegations raised in both
matters.
2

Allegations regarding the spoliation of the tractor-trailer’s “black-box” data were
raised only in Plaintiffs’ Motion for Sanctions in Griffin et al. v. Prime Inc. et al.
The Court will address the Plaintiffs’ claims regarding spoliation in Section II (B)
of this Order.
3

It is undisputed that movement of the tractor-trailer after a collision causes the
“black box” data to be erased.

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spoliation of evidence.” The Plaintiffs assert that Lacy was confronted with his
prior testimony regarding the “black box data” at his deposition in this case, but
Lacy denied that he had ever given an opinion on spoliation, and refused to answer
any additional questions related to spoliation.
The Defendants respond that a tow-truck operator, with the Georgia State
Patrol’s consent, moved Prime’s tractor-trailer forward to separate the tractortrailer from the prison van shortly after the collision. Defendants also argue that
their representatives did not arrive at the scene until after the tractor-trailer and the
prison van had been separated. The Defendants thus deny that they spoliated the
“black box” data because the data was already destroyed before any of their
representatives arrived at the scene of the accident. With respect to Lacy’s
testimony, the Defendants dispute that Lacy testified falsely at his deposition in
this matter, and assert that Lacy’s opinion on the facts in another case is not
relevant to the issues in this matter.
II.

DISCUSSION
A.

Legal Standard For Sanctions Regarding Trotter’s Testimony

A court may impose sanctions for litigation misconduct under its inherent

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power.4 Eagle Hospital Physicians, LLC. v. SRG Consulting, Inc., 561 F.3d 1298,
1306 (11th Cir. 2009) (citations omitted). The court’s inherent power is based on
“‘the court’s need to manage [its] own affairs so as to achieve the orderly and
expeditious disposition of cases.’” Id. (quoting Chambers v. NASCO, Inc., 501
U.S. 32, 43 (1991)). The court must exercise this power “‘with restraint and
discretion.’” Id. (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 764
(1980)). “‘The key to unlocking a court’s inherent power is a finding of bad
faith.’” Id. (quoting Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998)). A
party acts in bad faith by delaying or disrupting litigation, or hampering the
enforcement of a court order. Eagle Hospital Physicians, LLC., Inc., 561 F.3d at
4

Plaintiffs rely on Rule 37(c)(1) of the Federal Rules of Civil Procedure as a basis
for seeking sanctions against Defendants. The Plaintiffs’ allegations do not fall
under the umbrella of sanctionable conduct pursuant to Rule 37 because the
alleged misconduct did not directly violate a court order regarding discovery. The
Eleventh Circuit has repeatedly held that sanctions under Rule 37 are unavailable
in the absence of a court order compelling discovery. United States v. Certain Real
Property, 126 F.3d 1314, 1316-18 (11th Cir. 1997). Even if the sanctionable
conduct does not fit squarely under Rule 37, the Court has the “inherent power to
protect the orderly administration of justice and to preserve the dignity of the
tribunal.” In re Amtrak "Sunset Ltd.'' Train Crash in Bayou Canot, AL on
September 22, 1993, 136 F. Supp. 2d 1251, 1264-66 (S.D. Ala. 2001) aff'd sub
nom. In re Amtrak, 29 F. App'x 575 (11th Cir. 2001) (finding that sanctions are not
available under Rule 37 where defendant alleged that plaintiff provided perjured
interrogatories, but concluding that the court’s authority to impose sanctions falls
within its “inherent power”) (citations omitted). Here, the Court chooses to
consider the Plaintiffs’ allegations under its inherent authority to impose sanctions
for litigation misconduct.

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1306.
The dismissal of a party’s answer or a sanction that results in a default
judgment is a severe punishment, which should be given “only as a last resort,
when less drastic sanctions would not ensure compliance with the court’s orders.”
In re Sunshine Jr. Stores, 456 F.3d 1291, 1305-1306 (11th Cir. 2006). The district
court has the inherent power to strike an answer and enter a default judgment when
a party willfully obstructs the litigation process in bad faith. See Eagle Hospital
Physicians, LLC., 561 F.3d at 1306-1307 (affirming the court’s decision to dismiss
the complaint and enter a default judgment because defendant secretly monitored
the plaintiff’s attorney-client communications in bad faith).
1.

Analysis

At the trial held in Missouri, Trotter testified that prior to his depositions on
October 27, 2010 and October 13, 2011, he had informed Prime’s lawyer regarding
how Hassane had pulled over to the shoulder of the highway and stopped so he
could change driving positions with Trotter. See Pfs. Ex. 3, at 39-40; 46-47.
Trotter also stated, however, that Prime’s lawyer never instructed him to testify
falsely when Trotter was deposed in this matter in 2010 and 2011. See Dfs. Ex. P.
at 43. Plaintiffs claim that Prime’s lawyers must have manipulated Trotter’s
testimony or allowed inaccurate testimony to be given in this action. The

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Defendants claim that Trotter was manipulated by Plaintiffs’ counsel to change his
version of events. Defendants also claim that Trotter was motivated to testify
falsely at the trial in Missouri because Trotter may have contemplated litigation
against Prime. The parties’ interpretation of Trotter’s testimony is speculation and
conjecture.
Trotter’s testimony has been inconsistent over the course of these cases.
Based on this and the ambiguity of what Trotter has said, the Court is unwilling to
infer bad faith on this scant and ambiguous record. “[A] court ... should not go
beyond the necessities of the situation to foreclose the merits of controversies as
punishment for general misbehavior.” Dorsey v. Academy, 423 F.2d 858, 860–61
(5th Cir. 1970) (citations omitted). There is a strong policy favoring a trial on the
merits. See Fox v. Studebaker-Worthington, Inc., 516 F.2d 989, 996 (8th
Cir.1975). Trotter’s testimony is material to the claims and defenses raised in this
matter, and the inferences to be drawn from Trotter’s prior testimony are still the
subject of dispute. Trotter’s credibility and the weight to be given to his testimony
can be assessed only by a jury. Without a more convincing basis for sanctions, the
Court is unwilling to foreclose that a jury consider the merits of the controversies
in this case. Plaintiffs have not shown that Defendants or their counsel knew any
facts inconsistent with Trotter’s version of events in 2010 and 2011, or that

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Defendants and their counsel encouraged Trotter to testify falsely at his depositions
in this matter.
The Court agrees with the Plaintiffs that the timing of Trotter’s rehiring at
Prime and the forgiveness of Trotter’s debt is suspicious. Defendants have not
offered an explanation for these events. Plaintiffs, however, have offered no
evidence to suggest that Trotter’s debt was forgiven in exchange for perjured
testimony at his second deposition, or that Trotter was offered employment at
Prime in exchange for perjured testimony at his second deposition. In fact, at his
November 2013 deposition, Trotter admitted that Defendants’ representative did
not tell him what to say or how to testify when he was deposed earlier in this
matter. See Defs. Ex. 7 at 144-145. The Court notes further that Trotter’s October
2011, testimony was consistent with the testimony he gave a year earlier, at a time
when Plaintiffs do not allege any improper influence or circumstances. There is no
evidence that Trotter received a quid pro quo for his testimony, and Plaintiffs have
simply failed to show that Trotter testified falsely because Defendants rehired him
and forgave his debt.
In the absence of evidence to suggest that Defendants willfully allowed
Trotter to testify falsely, Defendants’ failure to produce the logbook entry, or to
explain the absence of the logbook entry, regarding the tractor-trailer’s location on

10

its own cannot support a finding of bad faith. The Court concludes that Plaintiffs’
Motion for Sanctions based on facts related to Trotter’s testimony is required to be
denied.
B.

Legal Standard For Spoliation

“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or reasonably
foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th
Cir. 2009). In determining whether to impose sanctions for spoliation, courts
consider five factors: (1) whether the plaintiff was prejudiced as a result of the
destruction of evidence; (2) whether the prejudice could be cured; (3) the practical
importance of the evidence; (4) whether the party accused of spoliation acted in
bad faith; and (5) the potential for abuse if the evidence is not excluded. McLeod
v. Wal-Mart Stores, Inc., 515 F. App’x 806, 808 (11th Cir. 2013). A showing of
bad faith requires the plaintiff to demonstrate that a “party purposely loses or
destroys relevant evidence.” Walter v. Carnival Corp., No. 09–20962–CIV, 2010
WL 2927962, at *2 (S.D. Fla. July 23, 2010) (quoting Bashir v. Amtrak, 119 F.3d
929, 931 (11th Cir. 1997)).
1.

Analysis

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Plaintiffs do not offer any evidence to suggest that Defendants knowingly
moved the tractor-trailer forward after the collision, and thereby erased the “black
box” data. Plaintiffs also do not offer any evidence to rebut the Defendants’ claim
that a tow-truck operator, with the Georgia State Patrol’s consent, moved Prime’s
tractor-trailer forward to separate the tractor-trailer from the prison van shortly
after the collision. The Plaintiffs are required to demonstrate that the Defendants
“purposely los[t] or destroy[ed] relevant evidence.” Walter v. Carnival Corp., No.
09–20962–CIV, 2010 WL 2927962, at *2 (quoting Bashir v. Amtrak, 119 F.3d at
931). Here, Plaintiffs failed to show that the Defendants willfully destroyed the
tractor-trailer’s “black box” data. See Connor v. Sun Trust Bank, 546 F. Supp. 2d
1360, 1376–77 (N.D. Ga. 2008) (finding bad faith because custodian
“affirmatively deleted” the “most relevant e-mail” despite being told to preserve
the document); Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1300–02
(M.D. Fla. 2009) (finding bad faith because forensic computer experts agreed that
e-discovery was “wiped” pursuant to “deliberate and intentional actions”);
Optowave Co. v. Nikitin, No. 6:05–cv–1083–Orl–22–DAB, 2006 WL 3231422, at
*9–11 (M.D. Fla. Nov. 7, 2006) (finding bad faith because computer expert
admitted to the intentional deletion of e-discovery).

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Lacy’s opinion that a failure to preserve “black box” data constitutes
spoliation of evidence does not support that spoliation occurred here. Plaintiffs
must show that Defendants purposely failed to preserve the “black box” data. A
failure to preserve evidence, without any degree of culpability, does not constitute
as spoliation of evidence. The Court also agrees with the Defendants that Lacy’s
opinion given in an unrelated case years ago has little to no bearing on this matter.
Plaintiffs have failed to offer any evidence to suggest that Defendants
purposely lost or destroyed the tractor-trailer’s “black box” data, and therefore,
Plaintiffs cannot demonstrate that Defendants acted in bad faith. Because the
Court finds that Plaintiffs have not shown that Defendants acted in bad faith, the
Court is not required to consider the other factors to determine whether to impose
spoliation sanctions. The Plaintiffs’ Motion for Sanctions based on the
Defendants’ alleged destruction of the tractor-trailer’s “black-box” data is required
to be denied.
III.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Sanctions [129] in

Griffin et al. v. Prime Inc. et al., No. 1:10-cv-01926 is DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Sanctions [127] in

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Lewis et al. v. Prime Inc. et al., No. 1:10-cv-01228 is DENIED.

SO ORDERED this 13th day of January 2014.

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