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
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