Sherwood v. BNSF Railway Company et al

Filing 268

MEMORANDUM DECISION. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ROBERT WILLIAM SHERWOOD
and PAMELA LOUISE
SHERWOOD, husband and wife,

Case No. 2:16-cv-00008-BLW
MEMORANDUM DECISION

Plaintiff,
v.
BNSF RAILWAY COMPANY, a
Delaware corporation dba The
Burlington Northern and Santa Fe
Railway Company, and John Does I
through X,
Defendant.

Previously, the Court issued its Order Re: Defendant’s Omnibus Motion in
Limine (Dkt. 182), in which I granted that portion of the motion seeking an order
prohibiting Sherwood from presenting evidence of alleged spoliation of evidence
by BNSF. See Dkt. 222. My ruling became a central issue during the trial, as
Sherwood repeatedly made a proffer as to what evidence of spoliation they would
1

have offered, but for my pretrial ruling. While I am satisfied with the decision I
had issued, I indicated to counsel that I intended to supplement that decision to
reinforce my reasons for granting BNSF’s motion. This Memorandum Decision
will serve that function.
As I pointed out in my earlier decision, the linchpin to Sherwood’s argument
regarding the November 2014 rehabilitation of the railroad crossing is that BNSF’s
sophisticated claims department should have known that the ballast, lags and
panels would be key evidence in the anticipated lawsuit. However, the claim made
by Sherwood has always been tied to a gap between the concrete planks, and
plaintiff provided no evidence that BNSF was on notice that he would claim that
the gap was caused by fouled ballast and inadequate drainage under the crossing,
until long after the rehab had been completed.
In my decision, I found that BNSF did not have an obligation to preserve the
evidence, because it did not know, or reasonably should have known, that the
evidence was potentially relevant. I did not address whether BNSF acted in bad
faith or destroyed evidence intentionally to prevent its use in this case, because that
is not necessary to imposing spoliation sanctions under current Ninth Circuit case
law. Glover v. BIC Corp., 6 F.3d 1318, 1329 (1993). However, that precedent
may be revisited given recent changes to Rule 37. With the 2015 Amendments,
the Rule requires a finding by the court that a party acted with the intent to deprive
2

another party of the use of electronically stored information (ESI) in litigation
before an adverse inference instruction – permissive or mandatory – may be given
to the jury. Fed .R. Civ. P. 37(e)(2)(B). While Rule 37(e) only addresses ESI, I
can think of no reason why the same principle should not govern the resolution
under common law of a claim that physical evidence was spoliated. Because I
anticipate that the Ninth Circuit may revisit the issue in this, or some other, appeal,
I will make clear that the record before me would not support a finding of bad faith
or intentional conduct as would be required by Rule 37 if this dispute involved ESI
rather than physical evidence.
In my first decision, I also pointed out that plaintiff never filed a motion
asking the court to impose a discovery sanction based on the alleged spoliation;
instead, plaintiff waited until the eve of trial and then simply included an adverseinference instruction in his proposed jury instructions – despite earlier direction
from Judge Lodge, who was then presiding over the case, that the issue should be
raised in the context of a discovery motion. See Sept. 28, 2018 Order, Dkt. 152, at
10. Now, I will underscore why the timing of the request is significant. Motions
for spoliation sanctions should always be made as soon as facts underlying the
spoliation claim are discovered. All spoliation sanctions are extreme in effect.
That is why a court, upon finding prejudice, “may order measures no greater than
necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). This, in turn, requires
3

that a judge consider a full range of options, including ordering additional
discovery that may remedy the loss of evidence, permitting additional depositions,
or working with counsel to find other means of curing the prejudice without
affecting the substantive rights of the parties. However, those options can only be
undertaken while discovery is still ongoing, and can almost never be considered or
applied on the eve of trial. It is for that reason, that Judge Lodge urged the parties
to submit the issue to the court in a separate motion. See Sept. 28, 2018 Order,
Dkt. 152, at 10 (directing plaintiff to raise spoliation in a separate motion;
observing that “the spoliation issue is a request for sanctions concerning a
discovery violation”). It also provided me with an additional reason to reject
Sherwood’s request on the eve of trial that he be permitted to offer spoliation
evidence and the jury be given an adverse inference instruction. But, as I pointed
out in my earlier decision, I concluded that a spoliation sanction was unwarranted
in this case, even if it had been requested in a timely manner.
Finally, I would note that Rule 403 provided another basis for my decision
not to permit evidence of spoliation to be submitted to the jury. The probative
value of such evidence would have been slight, since Sherwood was able to pursue
his theory of fouled ballast causing the planks to separate without it. And any
probative value would have been substantially outweighed by how such evidence

4

would have confused the issues, misled the jury, caused undue delay, and wasted
time during the trial. Fed. R. Evid. 403.
DATED: March 28, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

5