Basra, et al v. Ecklund Logistics, Inc.

Filing 94

ORDER - Plaintiffs' Motion for Sanctions and Second Motion to Compel Discovery (Filing No. 69 ) is granted in part, and in part denied, as set forth above. Defendant shall amend its verification for each set of its answers to interrogatories to comply with the signature and verification requirements of Rules 33(b)(3) and (5) on or before April 10, 2017. Ordered by Magistrate Judge F.A. Gossett. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
INDERJEET BASRA, individually
and as Personal Representative for the
ESTATE OF ATINDERPAL SINGH;
DILSHAAN S. REHAL, by and
through his next friend, INDERJEET
BASRA,
Plaintiffs,
v.
ECKLUND LOGISTICS, INC.,
Defendant.

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8:16CV83
ORDER

This matter is before the court on Plaintiffs’ Motion for Sanctions and Second
Motion to Compel Discovery (Filing No. 69). The court will grant the motion, in part, and
in part deny the motion.
Plaintiffs are the surviving spouse and child of Atinderpal Singh, who perished after
a trailer-tractor accident near York, Nebraska, on August 8, 2012, wherein Singh’s
tractor-trailer collided with a tractor-trailer driven by Freddy Galloway, an employee of
Defendant. Plaintiffs initially filed suit against Defendant and others in California state
court in 2014.

(Filing No. 81-6).

After the California court determined Nebraska

provided the more suitable forum, Plaintiffs filed this action against Defendant on
February 17, 2016, for negligence, loss of consortium, and punitive damages. (Filing No.
1).
The current discovery dispute concerns Plaintiffs’ continuing complaints regarding
Defendant’s production of documents and failure to verify and sign that its interrogatory
answers were made under oath. Plaintiffs allege that Defendant spoliated evidence by
intentionally destroying or failing to preserve relevant documents in anticipation of
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litigation, and request sanctions in the form of an adverse inference instruction to the jury
that the destroyed evidence would have favored Plaintiffs’ case and would have been
unfavorable to Defendant. Plaintiffs also request attorney’s fees and costs and an order
compelling Defendant to provide a properly signed verification for each set of its
interrogatory answers and to produce certain documents in compliance with this court’s
previous Order (Filing No. 53).
In response, Defendant denies it spoliated any evidence, and claims the documents
alleged to have been intentionally destroyed never existed, were available to Plaintiffs
from other sources, or were destroyed in the ordinary course of business. Defendant also
asserts Plaintiffs’ motion is now partially moot because Defendant has since supplemented
its discovery responses and provided a signed verification to address Plaintiffs’ issues.
(Filing No. 77 at p. 2). Plaintiffs acknowledge Defendant’s supplementation; however,
Plaintiffs argue that the supplementation occurred after the parties’ agreed upon (and court
ordered) deadline of January 10, 2017, and after Plaintiffs filed this motion. (Filing No.
80 at pp. 16-18). Plaintiffs also maintain that Defendant’s recently provided verification
(Filing No. 78-1 at p. 3) is insufficient because it fails to specify which of the three sets of
interrogatory responses it covers. (Filing No. 80 at p. 18).

DISCUSSION
I.

Spoliation
Plaintiffs assert that Defendant had a duty to preserve all relevant and discoverable

materials beginning on August 8, 2012, the date of the accident, because at that time
Defendant knew or should have known of possible future litigation.

In particular,

Plaintiffs contend relevant evidence that was not preserved by Defendant includes
Galloway’s driver logs, Qualcomm data (the system used at the time of the accident to
track of Defendant’s truck’s mileage and location), PeopleNet server data (the system that
replaced Qualcomm), Defendant’s accident report and accident register, the version of the
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driver’s handbook provided to Galloway, and Galloway’s driver qualification files.
Plaintiffs request an adverse inference jury instruction due to Defendant’s alleged
spoliation of the above evidence.
“[F]ederal law applies to the imposition of sanctions for the spoliation of evidence.”
Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012). When a party alleges
spoliation of evidence, the court “is required to make two findings before an adverse
inference instruction is warranted: (1) ‘there must be a finding of intentional destruction
indicating a desire to suppress the truth,’ and (2) ‘[t]here must be a finding of prejudice to
the opposing party.’” Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013)
(quoting Stevenson v. Union Pac. R. Co., 354 F.3d 739, 746, 748 (8th Cir. 2004)). “The
ultimate focus for imposing sanctions for spoliation of evidence is the intentional
destruction of evidence indicating a desire to suppress the truth, not the prospect of
litigation.” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (quoting
Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th Cir. 2004)). If spoliation occurs, “[a]
court’s inherent power includes the discretionary ability to fashion an appropriate sanction
for conduct which abuses the judicial process.” Sherman v. Rinchem Co., 687 F.3d 996,
1006 (8th Cir. 2012).
In reviewing the evidence submitted by the parties, the court finds Plaintiffs have
not established Defendant intentionally destroyed evidence with a desire to suppress the
truth. Defendant’s evidence indicates the information requested by Plaintiffs did not
exist, was obtained by Plaintiffs through other sources, or was purged by the company per
DOT regulations.
With respect to Plaintiffs’ request for Defendant’s accident report and accident
register, deposition testimony from Defendant’s president, Kirk Ecklund, indicates that
Defendant did not conduct its own investigation into the accident and instead the company
relied on the investigations of law enforcement and their insurer. (Filing No. 78-5 at p.
102, 106). Additionally, according to deposition testimony from Dean Briesmeister
(Defendant’s safety director at the time of the accident), Defendant’s accident register
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would have included basic information about the accident, including the name of the driver
involved, the fact that there was a death, the fact that Galloway was hurt, when and where
the accident occurred, and no information regarding fault -- all information Plaintiffs
already have from other sources. (Filing No. 78-7 at p. 42).
With respect to the unavailable Qualcomm data, a representative of Defendant
testified that Qualcomm would have had no information in it from the date of the accident
regarding Galloway’s driving times because Galloway was “computer illiterate” and did
not enter his logs into Qualcomm. PeopleNet also would not have information in it from
the date of the accident because Defendant did not save any of the information from the
Qualcomm server when Defendant transitioned from Qualcomm to PeopleNet
approximately three years ago.

(Filing No. 78-5 at pp. 13-15).

More importantly,

Galloway’s physical driving logs for the period of time leading up to and including the
accident were taken by law enforcement and have been produced to Plaintiffs during
discovery. Counsel was able to question Kirk Ecklund, Galloway, and Briesemeister
about Galloway’s driving logs from the time of the accident. (Filing No. 78-5 at p. 96,
Filing No. 78-7 at pp. 87-88; Filing No. 78-8).
Plaintiffs also seek Galloway’s driver qualification file.

According to the

deposition testimony of Briesemeister, Galloway’s driver qualification file would have
included his physical, a road test motor vehicle record, Social Security card, job
application, driver’s license, medical card, recap of his hours for the week before his hire,
and an acknowledgement of receipt of a copy of the DOT Green Book. (Filing No. 78-7 at
p. 21-23, 84). Briesemeister testified the file is kept in the case of a DOT audit. (Filing
No. 78-7 at p. 21). Lana Ecklund testified Galloway’s driver qualification file was
destroyed as permitted by DOT regulations after Galloway was no longer an active driver
or employee. (Filing No. 78-6 at p. 64). Plaintiffs have been able to discover some of the
relevant information that would have been contained in the driver qualification file,
including questioning Galloway about the driver qualification test. (Filing No. 78-8 at pp.
24-27).
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Finally, Defendant produced its current driver’s handbook to Plaintiffs, as
Defendant did not have the 2012 version of the handbook that Galloway would have had at
the time of the accident. However, counsel for Plaintiffs was able to question Defendant’s
witnesses regarding the differences and changes in the two handbooks.
In review of the above evidence, the court finds that although Defendant’s
record-keeping is less than meticulous, including the company’s acceptance of Galloway’s
“computer illiteracy” to excuse his failure to enter his hours into the Qualcomm system, the
Eighth Circuit has “rejected a spoliation instruction on the basis of mere negligence.”
United States v. Tyerman, 701 F.3d 552, 561 (8th Cir. 2012) (citing Stevenson, 354 F.3d at
746-47). Many of the records sought by Plaintiffs appear to have been kept pursuant to
DOT guidelines and later purged by Defendant in the regular course of business pursuant
to DOT guidelines, without suggestion that they were destroyed intentionally with a desire
to suppress the truth. Moreover, Plaintiffs cannot show prejudice as Plaintiffs have
obtained much of the information sought from Defendant through other sources and
depositions. The court concludes Defendant has not engaged in conduct that would
warrant the sanction of an adverse jury instruction for spoliation of evidence. Therefore,
the court denies Plaintiffs’ motion with respect to its claim for spoliation.

II.

Document Production, Fees and Costs, and Verification
The court previously ordered Defendant to produce certain documents, including

Defendant’s 2012 financial documents, by or before January 13, 2017. (Filing No. 53 at
p. 7). By a court-approved stipulation of the parties, this deadline was amended to
January 10, 2017. (Filing No. 59). Plaintiffs acknowledge Defendant supplemented its
production in response to Plaintiffs’ motion, but argue the supplementation was untimely.
Additionally, Plaintiffs assert Defendant’s verification of its answers to interrogatories was
not proper.

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Fed. R. Civ. P. 33(b) requires answers to interrogatories be made in writing, given
under oath, and signed by the person giving the answers, verifying the truth and
completeness of the answers. See Fed. R. Civ. P. 33(b)(3) and (5). The verification
provided by Lana Ecklund on behalf of Defendant states, “I have read the foregoing
Answers to Interrogatories to Defendant and that they are true and accurate as I verily
believe.” As noted by Plaintiffs, Defendants have provided three sets of answers to
interrogatories, but the above verification generally refers to “Answers to Interrogatories.”
Therefore, the court finds that Defendant must amend its verification for each set of its
answers to interrogatories to comply with the signature and verification requirements of
Rules 33(b)(3) and (5).
As a sanction for failing to comply with a court order, Plaintiffs seek reasonable
expenses incurred in making its motion, including attorney’s fees and costs. “A district
court has discretion under Rule 37 . . . to impose appropriate sanctions for the failure to
make discovery.” Laclede Gas Co. v. G. W. Warnecke Corp., 604 F.2d 561, 565 (8th Cir.
1979). “If a party . . . fails to obey an order to provide or permit discovery ... the court
where the action is pending may issue further just orders.” Fed. R. Civ. P. 37(b)(2).
Sanctions may include any reasonable costs or attorney’s fees incurred in having to bring a
motion to compel. Fed. R. Civ. P. 37(d)(3).

The court’s previous order required

Defendant to produce financial statements from 2012 to the present. Defendant indicates
it produced financial documents to Plaintiffs, but inadvertently omitted its 2012 income
statement and balance sheet with its production of its other financial information from the
years 2010, 2011, 2013, and 2014. Defendant also provides reasonable explanations for
its delayed production of training videos. The court has reviewed the arguments and
evidence submitted by the parties and concludes that under the circumstances, the
imposition of sanctions against Defendant is not warranted. Accordingly,

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IT IS ORDERED:

Plaintiffs’ Motion for Sanctions and Second Motion to

Compel Discovery (Filing No. 69) is granted in part, and in part denied, as set forth above;
and
Defendant shall amend its verification for each set of its answers to interrogatories
to comply with the signature and verification requirements of Rules 33(b)(3) and (5) on or
before April 10, 2017.
DATED: March 31, 2017.

BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge

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