Garnett v. Pugh et al

Filing 47

ORDER & REASONS: denying 27 plaintiff's Motion for Spoliation of Evidence. Signed by Judge Carl Barbier on 3/18/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GARNETT

CIVIL ACTION

VERSUS

NO: 14-479

PUGH ET AL.

SECTION: “J” (4)
ORDER & REASONS

Before the Court is Plaintiff Paulette Garnett’s Motion for
Spoliation of Evidence (Rec. Doc. 27) and Defendants Christopher
Pugh,

Protective

Insurance

Company,

and

Waggoners

Trucking

Company’s opposition thereto. (Rec. Doc. 35) Having considered
the motion and memoranda of the parties, the record, and the
applicable law, the Court finds that the motion should be DENIED
for the reasons set forth more fully below.
FACTS AND PROCEDURAL BACKGROUND
This action arises out of a rear-end collision involving
Plaintiff

Paulette

combination

owned

Garnett
by

(Garnett)

Defendant

and

a

Waggoners

tractor-trailer
Trucking,

Inc.

(Waggoners) on February 5, 2013. (Rec. Doc. 27-30, p. 1-2) The
facts surrounding the rear-end collision are in dispute. At or
around

the

traveling

in

time
the

of
left

the

collision,

lane

of

US

Garnett
90B,

also

was

allegedly

known

as

the

“Westbank Expressway,” near its intersection with Westwood Drive
in Jefferson Parish, Louisiana. (Rec. Doc. 27-30, p. 2) At or
around that same time, Garnett alleges that a Waggoners 2012

Kenworth

tractor

with

flatbed

trailer

was

traveling

behind

Garnett’s vehicle. She further alleges that Christopher Pugh, a
Waggoners employee, was operating the tractor-trailer and that
his son, Jeremy Davis (Davis), who is also a Waggoners employee,
rode with Pugh as his co-driver on the trip. Id. Garnett asserts
that

as

she

approached

the

intersection

of

Westwood

Drive,

observing a traffic signal change from green to yellow, she
slowed her vehicle to stop, and the tractor-trailer operated by
Pugh

collided

with

the

rear

of

her

vehicle.

Id.

Although

Garnett’s deposition testimony reveals that she did admittedly
change lanes prior to the collision, the parties dispute the
specific time in which she changed lanes prior to slowing her
vehicle. (Rec. Doc. 35, p. 2) While Garnett asserts that she did
not believe her lane change to be of consequence in the rear end
collision,

Waggoners

alleges

that

Garnett

changed

lanes

and

stopped abruptly in a way that left Pugh without enough time and
distance to stop the tractor-trailer. (Rec. Doc. 27-30, p. 2-4)
On January 9, 2014, Garnett filed suit in the 24th Judicial
District of Louisiana against Pugh, Waggoners, and Protective
Insurance Company (Protective). (Rec. Doc. 1, p. 1) Thereafter,
Protective

removed

the

action

to

this

Court

pursuant

to

28

U.S.C. § 1332 and 28 U.S.C. § 1441 on February 28, 2014. (Rec.
Doc. 1) Garnett filed a Motion to Compel (Rec. Doc. 20), which
was

heard

for

oral

argument

on

2

January

28,

2015,

seeking

production of various documents. The motion was opposed, and
this Court ultimately granted the motion in part and denied the
motion in part. (Rec. Doc. 26, p. 7) Garnett then filed the
instant motion on February 21, 2015, seeking to have this Court
(1)

issue

a

judgment

declaring

that

Defendants

destroyed,

mishandled, and altered critically important evidence relevant
to

the

liability

Defendants’

for

the

responsive

rear-end

pleadings

collision;

regarding

(2)

strike

liability

as

a

penalty; (3) barring Defendants from disputing liability for the
collision

at

trial;

or

(4)

alternatively,

allow

adverse

presumption jury charges for each piece of evidence Waggoners
destroyed and altered. Defendants opposed the motion on March 3,
2015. (Rec. Doc. 35) On March 10, 2015, Garnett filed a reply.
(Rec. Doc. 45)
PARTIES’ ARGUMENTS
Garnett

argues

that

Waggoners

altered,

mishandled,

and

destroyed critically important evidence by: (1) “losing” Davis’s
recorded statement, which was taken at the time of the accident
by Victor Villanova (Villanova), a Custard Insurance Adjusters
(CIA)

employee

preserve,

or

investigating

destroying,

the

the

accident;

engine

(2)

control

failing

module

data

to
by

allowing the data to be overwritten when the tractor experienced
“subsequent

deceleration

events”

between

the

time

of

the

accident and the time the data was extracted; (3) failing to

3

preserve electronic data and hours of service documents that
could help determine whether Pugh was fatigued at the time of
the accident, including Pugh and Davis’s subjective daily logs,
fuel receipts, toll receipts, bills of lading, and other similar
documents;
systems

and

data

(4)

failing

(tracking

to

data)

preserve
from

the

identifiable
tractor(s)

Qualcomm

Pugh

drove

statement

taken

during the weeks and days prior to the accident.
As

to

the

audio

recording

of

Davis’s

immediately after the accident, Garnett alleges that this Court
should

reject

any

claims

that

Waggoners

lost

the

recorded

statement. Garnett asserts that Waggoners likely knew that the
recorded

statement

demanded

that

statement

as

was

Davis
a

unfavorable

author

substitute

a

to

Pugh,

so

“biased/favorable”
for

the

recorded

Waggoners
handwritten
statement.

Furthermore, Garnett questions why Villanova utilized “regular
mail,” rather than a mail service that would have allowed for
tracking of the delivery in transporting the recorded statement.
Alternatively, Garnett asserts that even if the statement was
lost, Waggoners’ failure to copy the recorded statement or hire
an

independent

“demonstrates

third

party

Waggoners’

to

transcribe

the

recording

willful

disregard

for

competent

evidence preservation and retention protocol(s).” In addition,
the summary of the statement, prepared by Villanova the day

4

after the accident, does not mitigate any prejudice suffered
from not having the recorded statement.
Secondly,

Garnett

alleges

that

the

Defendants

failed

to

preserve, or destroyed, the relevant engine control module data
(ECM). Because Defendants failed to download the ECM data in a
reasonable amount of time, the data was overwritten when the
tractor experienced “subsequent deceleration events” between the
date of the accident and the date of the data extraction. In
addition, Garnett is severely prejudiced by this missing data
because it could have provided detailed and objective insight
into the mechanics of the collision. Further, Garnett asserts
that Defendants could have discharged their duty to preserve the
data by notifying Garnett that they did not intend to download
or otherwise preserve the data; therefore, Garnett could have
then made arrangements to obtain the data.
Next, Garnett alleges that Defendants failed to preserve
data and documents from the last week of January 2013 to the
first

week

of

February

2013

that

could

have

been

used

to

determine whether Pugh was fatigued at the time of the accident,
including Pugh and Davis’s subjective daily logs, fuel receipts,
toll receipts, bills of lading, other similar documents, as well
as identifiable QUALCOMM systems messaging and tracking data.
Specifically, Garnett alleges that the tracking data was nondescript as to who drove the tractors during the weeks and days

5

prior to the accident and that the tracking data was altered.
Garnett

contends

that

Davis’s

daily

log

originally

indicated

that he was in the tractor’s sleeper berth at the time of the
collision, but that information was later “lined through” and
corrected to state that Davis was “off-duty.”
Finally,
Defendants

Garnett

bear

mishandling,

a

and

asserts

high

that

degree

for

all

these

fault

for

evidence.

altering

of

Based

on

reasons,

destroying,
the

severe

prejudice caused to Garnett by Defendants’ failure to preserve
critical evidence, Garnett asserts that “stripping Defendants of
their

liability

defenses”

is

the

most

appropriate

penalty.

Alternatively, Garnett seeks adverse presumption jury charges as
to

every

piece

of

evidence

that

Defendants

destroyed,

mishandled, and altered.
Defendants deny all of the allegations regarding spoliation
and pray that this Court deny Garnett’s Motion for Spoliation of
Evidence.

Further,

Defendants

assert

that

Garnett

has

mischaracterized or exaggerated facts relating to: (1) the State
Trooper’s

finding

of

fault

related

to

the

accident,

(2)

Villanova’s testimony relating to the accident and Garnett being
“extracted” from the vehicle, (3) referral to a settlement of
property

damage

claims,

(4)

Protective

Insurance

Company

allegedly pressuring Waggoners to terminate Pugh’s employment,
(5)

Waggoners’

failure

to

preserve

6

drivers’

logs

and

trip

envelope, (6) alleged false claims regarding documents produced
after the hearing on the motion to compel, and (7) Defendants
allegedly altering

Davis’s logs.

Defendants contend that they did not alter Davis’s Driver
log for February 5, 2013, but rather, Davis had edited the log
prior to submitting it to Waggoners. Secondly, Defendants assert
that they did not alter or destroy any Qualcomm data and have
provided the relevant hours of service documents to Garnett.
Defendants state that both Pugh and Davis’s driver logs were
submitted to Garnett, and that Garnett has all of the documents
supporting Pugh’s hours of service. Further, Defendants argue
that the Qualcomm system could not have been used to enter the
driver

log

hours,

because

the

Waggoners

units

lacked

this

capability. Therefore, Defendants assert that since something
that

does

not

exist

cannot

be

intentionally

destroyed

or

altered

or

altered, spoliation could not have occurred.
Additionally,

Defendants

deny

that

they

destroyed the audio tape of Jeremy Davis’s statement. Neither
Protective

nor

Waggoners’

claim

administrator

nor

Waggoners’

safety department received the tape. Furthermore, Garnett is not
prejudiced

by

this

missing

tape,

because

Villanova’s

typed

summary of Davis’s statement is in her possession.
Finally, Defendants deny that they intentionally destroyed
ECM data or acted in bad faith. Waggoners does not dispute that

7

the ECM data was not downloaded until June 25, 2014, which was
approximately eight days after receiving the written request by
Garnett.

Further,

Waggoners

contends

that

Garnett

could

have

requested the ECM data download earlier, and Waggoners would
have complied with such a request. Defendants explain that the
ECM

data

could

provide

no

information

regarding

Garnett’s

movements, speed, or distance in front of the unit that Pugh was
operating.

In

addition,

Defendants

have

acted

Garnett

has

intentionally

failed
or

in

to
bad

show
faith,

that
so

sanctions are not warranted.
In

her

reply,

Garnett

disputes

many

of

Defendants’

statements. Garnett alleges that Defendants incorrectly stated
that: (1) Villanova’s testimony that emergency personnel removed
Garnett from her car is “hearsay,” (2) Garnett previously stated
the Qualcomm system should have been used to enter driver log
hours, (3) because Waggoners located Pugh and Davis’s logs on a
back-up server, “all is well” with respect to how Waggoners
responded to Garnett’s multiple requests for the driving logs,
(4) the engine control module data is irrelevant and Garnett
could have obtained the data before Waggoners destroyed it, (5)
the recorded statement of Pugh’s son was, without explanation,
“simply lost,” and (6) Davis’s log for February 5, 2013, was not
materially altered, and hence not spoiled. Garnett goes on to

8

argue

why

each

of

these

statements

is

incorrect

and

the

spoliation

of

importance of each issue.
LEGAL STANDARD
When
evidence,
federal

evaluating
federal

evidentiary

allegations

courts
rules

regarding

sitting

in

rather

diversity

than

state

are

to

apply

spoliation

laws.

Condrey v. SunTrust Bank of Georgia, 431 F.3d 191, 203 (5th Cir.
2005) (citing King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th
Cir. 2003)); Lafayette Ins. Co. v. CMA Dishmachines, No. 03–
1098, 2005 WL 1038495, at *3 (E.D. La. Apr. 26, 2005)(Vance,
J.). A plaintiff alleging spoliation must establish that the
defendant intentionally destroyed the evidence for the purpose
of depriving opposing parties of its use. Catoire v. Caprock
Telecommunications Corp., No. 01-3577, 2002 WL 31729484, at *1
(E.D. La. Dec. 2, 2002). It is insufficient to show that a party
acted negligently, rather than intentionally, in spoiling the
evidence. Id.
The spoliation of evidence doctrine provides courts with
the authority to impose sanctions on responsible parties when
there

has

been

intentional

destruction

of

relevant

evidence.

This Court has previously held that in order for a court to
impose an adverse inference or other sanctions, it must first
determine whether the doctrine of spoliation applies. Collongues
v. State Farm Auto. Ins. Co., No. 09–3202, 2010 WL 103878, at *2

9

(E.D. La. Jan. 7, 2010). In order for the doctrine to apply, the
movant

must

prove

two

elements:

(1)

that

the

party

having

control over the evidence had a duty to preserve the evidence at
the time it was destroyed; and (2) that the destruction of the
evidence was intentional. Id. (citing Menges v. Cliffs Drilling
Co., No. 99–2159, 2000 WL 765082, at *2 (E.D. La. June 12,
2000)).

In

evidence,
relevant

order

the
to

for

party

a

party

must

litigation.

to

have

have

notice

Menges,

2000

a

duty

that
WL

the

765082,

to

preserve

evidence
at

*2.

is
In

addition, negligence is not sufficient to support the imposition
of sanctions for spoliation. See In re Bertucci Contracting Co.,
L.L.C., No. CIV.A. 12-0697, 2014 WL 5483707, at *3 (E.D. La.
Oct. 29, 2014); Lafayette Ins. Co., 2005 WL 1038495, at *3.
Furthermore,

it

is

settled

that

a

sanction

predicated

upon

spoliation of evidence requires a showing that the party acted
in bad faith. See King, 337 F.3d at 556; United States v. Wise,
221 F.3d 140, 156 (5th Cir. 2000).
DISCUSSION
As a threshold matter, it does appear to this Court that
Waggoners was put on notice that litigation was likely to arise
from

the

accident

when

they

dispatched

CIA

to

the

scene.

Additionally, litigation was reasonably foreseeable when Garnett
was transported to the hospital following the accident. Thus,
the Court finds that Defendants had a duty to preserve relevant

10

data within their control. Consolidated Aluminum Corp. v. Alcoa,
Inc., 244 F.R.D. 335, 339 (M.D. La. July 19, 2006)(noting that
the duty to preserve arises “when a party should have known that
the evidence may be relevant to future litigation” (internal
quotation marks and citation omitted)). The question therefore
becomes whether Plaintiff has shown that Defendant intentionally
destroyed the evidence. Menges, 2000 WL 765082, at *2 (“Once a
court

concludes

evidence,

it

intentionally

that

must

a

then

destroyed

party

was

consider
and

the

obliged
whether
likely

to

preserve

the

the

evidence

was

contents

of

that

Davis

that

evidence.”)
1. DAVIS’S RECORDED STATEMENT
In

regards

to

the

recorded

statement

of

Villanova took immediately following the accident, Garnett has
made

several

include:

(1)

allegations
Defendants

regarding
destroyed

Defendants’
the

tape,

actions
(2)

that

Defendants

should have ensured it was transcribed by an independent third
party,

and

(3)

Defendants

had

questionable

intentions

when

taking down Davis’s handwritten statement. (Rec. Doc. 27-30, p.
13-14) Although courts within the Fifth Circuit have recognized
that

a

“strong

chain”

of

circumstantial

evidence

could

be

sufficient to establish the intent to destroy evidence, Garnett
has

failed

to

provide

any

evidence

indicating

that

the

Defendants destroyed the tape. See In re Bertucci Contracting

11

Co.,

L.L.C.,

2014

WL

5483707,

at

*3.

Garnett

only

offers

a

string of conclusory statements indicating that the Defendants
wanted the tape to be destroyed because it likely contained an
unfavorable statement. (Rec. Doc. 27-30, p. 13) These conclusory
statements

are

insufficient

to

support

any

sanction

for

spoliation of evidence.
Alternatively, Garnett argues that Villanova mailing the
tape via regular mail, the fact that no copy was made, and
Waggoners’

failure

transcribe
disregard

the
for

to

“hire

recording
competent

protocol(s).”

(Rec.

an

independent

demonstrates

evidence

Doc.

third

Waggoners’

preservation

27-10,

p.

party

14)

and

to

willful
retention

However,

these

allegations again do not amount to the intentional destruction
of evidence for purposes of spoliation. First, Villanova is not
a party to this action, so the method of mail he chose to use to
send

the

tape

to

Defendants

is

not

determinative

here.

And

Defendants have submitted affidavits indicating that neither PIC
nor Waggoners received the tape. (Rec. Doc. 35-5 & Rec. Doc. 358)

Thus,

Garnett

simply

has

not

established

any

evidence

indicating that Defendants destroyed Davis’s recorded statement.
Furthermore,

Villanova

completed

a

typed

summary

of

the

statement the day following the accident, which Garnett has in
her possession. (Rec. Doc. 35, pp. 10-11) The Court finds that
Garnett

has

failed

to

show

that

12

Defendants

intentionally

destroyed the recorded statement, as necessary to support any
sanction

against

Defendants

for

spoliation

of

evidence.

The

Court similarly finds that the lack of a copy and the mere fact
that Waggoners could have hired an independent third party to
transcribe

the

recording

cannot

support

the

imposition

of

sanctions here.
2. ECM DATA
Garnett

also

alleges

that

Defendants

intentionally

destroyed the ECM data by failing to download that data within a
reasonable amount of time. (Rec. Doc. 27-30, p. 14) Defendants
downloaded the ECM data within eight days of a written request
for such data from Garnett, which request was not made until
approximately sixteen months after the accident. (Rec. Doc. 35,
p.

12)

However,

as

a

result

of

the

tractor’s

subsequent

deceleration events, the data from the date of the accident had
been overwritten and destroyed when Defendants downloaded it.
(Rec.

Doc.

27-30,

p.

14)

Defendants

intentionally

allegation

stating

as

Again,

Garnett

destroyed

the

much

is

has

not

data.

Her

insufficient.

shown

that

conclusory

Therefore,

the

imposition of the requested sanctions is improper as to the ECM
data.
3. QUALCOMM TRACKING AND MESSAGING DATA
Next, Garnett asserts that Defendants failed to preserve
the Qualcomm messaging data from the latter part of January 2013

13

until February 5, 2013. (Rec. Doc. 27-30, p. 15) Garnett does
not

provide

any

support

for

her

allegations

regarding

Defendants’ destruction of or failure to preserve the Qualcomm
messaging data. Although Defendants do not directly address this
argument

in

their

opposition,

Pugh’s

deposition

testimony

suggests that the Qualcomm messaging system was down at the time
of the accident and some time prior to the accident. (Rec. Doc.
35-2, p. 3) Garnett’s spoliation claim regarding the Qualcomm
data fails.
In

addition,

electronic
tracking
accident,

tracking

Garnett
data,

data

for

only

but

did

not

states,
Waggoners

one

relevant

preserve

“With

respect

produced
date,

to

the

non-identifiable
the

identifiable

date

data

of

the

from

the

tractor(s) Pugh drove during the weeks and days leading up to
and including the date of the accident.” (Rec. Doc. 27-30, p.
15) Defendants addressed this argument by explaining that none
of the Waggoners units had the capability of allowing a person
to enter his driver log hours. (Rec. Doc. 35, p. 9) Although
Garnett denies any reference to driver logs in her reply, her
original motion does make several references to the tracking
data being non-identifiable or not indicating who was driving.
(Rec. Doc. 27-30, p. 8, 9, 15, 21) In any case, Defendants have
in fact produced the tracking data for the day of the accident.
As to any other days that Garnett may have requested tracking

14

data for, she has not presented any evidence supporting the
contention

that

Defendants

in

fact

destroyed

that

evidence.

Garnett’s claim of spoliation as to the Qualcomm tracking data
is unsupported and without merit.
4. HOURS OF SERVICE DOCUMENTS
Finally,
obligation

Garnett

to

alleges,

preserve

critically

“Waggoners

breached
documents

important

its
and

electronic data . . . . The missing documents not only included
all of Pugh and his son’s subjective daily logs, but critically
important

objective

documents

such

as

fuel

receipts,

toll

receipts, bills of lading and other similar documents.” (Rec.
Doc. 27-30, pp. 14-15)(emphasis omitted). In addition, Garnett
further contends that someone altered Davis’s driver logs for
the date of the accident. Id. at 20. Defendants explain that
both Davis and Pugh’s driver logs were turned over to Garnett,
and

the

Order

on

Garnett’s

Motion

to

Compel

indicated

that

Garnett was not entitled to Davis’s “trip envelope” documents.
(Rec. Doc. 26, p. 7) Therefore, the record suggests that at
least some of the requested documents, including payroll data,
were

turned

others

were

over
found

to
to

Garnett
be

(Rec.

Doc.

irrelevant.

27-30,

(Rec.

p.

Doc.

7),
26,

while
p.

7)

Moreover, Garnett has not put forth any evidence indicating that
Defendants destroyed any of the documents requested.

15

Finally, there is no indication of when Davis’s driver log
was corrected. While Garnett contends that Waggoners corrected
the statement, Defendants explain that the log was turned in
with that alteration. (Rec. Doc. 35, p. 9) Here, Garnett has
failed

to

altered
regarding
finding

put

the

any

evidence

indicating

logs.

the
of

forth

Therefore,

the

hours

of

documents

spoliation,

service
and

that

Defendants

unsubstantiated

sanctions

do

for

not

claims

support

spoliation

a

are

improper.
Garnett has failed to show that Defendants acted in bad
faith or intentionally destroyed any evidence discussed herein.
Therefore, the Court finds that it would be improper to strike
Defendants’ liability defenses or allow any adverse jury charge.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Spoliation
of Evidence (Rec. Doc. 27) is DENIED.
New Orleans, Louisiana this 18th day of March, 2015.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

16