Sanders et al v. Hyundai Motor America et al

Filing 42

ORDER Granting 36 Motion Requesting Preservation of Evidence. Signed by Magistrate Judge Brenda Weksler on 2/16/2021. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:20-cv-01861-GMN-BNW Document 42 Filed 02/16/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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M.S., a minor, by guardian Valerie
Sanders,

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Plaintiff,

Case No. 2:20-cv-01861-GMN-BNW
Order re [36]

v.
Hyundai Motor America, et al.,
Defendants.

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Before the Court is defendant Hyundai Motor America’s (“HMA”) motion requesting a

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preservation order. ECF No. 36. The court notes HMA’s motion was served on Fast Towing,

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Inc., a non-party who is currently in possession, custody, or control of the 2017 Chevrolet Impala

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that HMA seeks to preserve. ECF No. 38. But there has been no response to HMA’s motion.

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The incident underlying the present lawsuit occurred in Las Vegas on May 19, 2018. See

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ECF No. 8-1 at 6. While intoxicated, nonparty Jonathan Jackson drove his 2017 Chevrolet Impala

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(VIN 2G1105S34H9112609) into a 2012 Hyundai Elantra in which plaintiff M.S. was an

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occupant. See id. at 6–7. The impact caused damage severe enough to total both vehicles. The

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Impala and Elantra were both towed from the crash scene by Fast Towing. Id.

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After having attempted to contact Fast Towing several times, Fast Towing communicated

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to HMA that it is prepared to “crush” the 2017 Chevrolet Impala at a salvage yard if HMA does

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not pay $15,000 for it. HMA is not willing to purchase the vehicle at that price and seeks an order

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from this Court ordering Fast Towing to preserve it until the parties can conduct an inspection.

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HMA explains this is necessary so as to not lose key information relating to the subject incident

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and any questions that may ensue in terms of damages. This court issued a minute order soon

Case 2:20-cv-01861-GMN-BNW Document 42 Filed 02/16/21 Page 2 of 3

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after the underlying motion was filed ordering Fast Towing to preserve the vehicle until this

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motion was resolved. ECF No. 37.

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The Court now grants HMA’s motion and will order Fast Towing to preserve this vehicle

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for 60 days from today’s date. The parties are ordered to conduct the inspection within the next

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60 days, and HMA is ordered to pay the reasonable cost of storage.
Discussion

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The court has the inherent authority to order a third party to preserve evidence, provided it

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does so with restraint and discretion. Bright Solutions for Dyslexia, Inc. v. Doe, 2015 WL

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5159125, at *2 (N.D. Cal. Sept. 2, 2015); accord, Arkin v. Gracey-Danna, Inc., 2016 WL

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3959611, at *1 (M.D. Fla. July 22, 2016); Deggs v. Fives Bronx, Inc., 2020 WL 3100023, at *2

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(M.D. La. June 11, 2020).

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Before a preservation order is issued, the movant must show that there is a significant

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concern that potentially relevant evidence will be destroyed, thereby causing harm to the movant.

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CenturyLink, Inc. v. Alpine Audio Now, LLC, 2016 WL 192291 at *1 (D. Colo. Jan. 15, 2016).

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“In determining whether a preservation order is necessary to reinforce a party's pre-existing duty

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to preserve evidence, courts have considered: ‘(1) the level of concern the court has for the

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continuing existence and maintenance of the integrity of the evidence in question in the absence

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of an order directing preservation of the evidence; (2) any irreparable harm likely to result to the

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party seeking the preservation of the evidence absent an order directing preservation; and (3) the

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capability of an individual, entity, or party to maintain the evidence sought to be preserved.’”

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Bright Solutions for Dyslexia, Inc., 2015 WL 5159125 at *6-7 (citing Echostar Satellite LLC v.

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Freetech, Inc., 2009 WL 8399038, at *2 (N.D. Cal. Jan. 22, 2009)).

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As applied here, the court finds that, absent a preservation order, there is a significant

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possibility that Fast Towing may not “maintain the integrity of the evidence in question,” since it

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is not a party to the underlying action, has no duty to do so, and has already communicated an

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intent to “crush” it.

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Case 2:20-cv-01861-GMN-BNW Document 42 Filed 02/16/21 Page 3 of 3

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Next, the court finds that if the vehicle is not preserved, the Defendant will suffer

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irreparable harm because it will not be able to obtain information relevant to potential liability

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issues and/or the aspects of the case that may deal with damages.

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Finally, the court is confident that Fast Towing is capable of maintaining the evidence

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sought to be preserved at minimal burden and cost, especially given the Defendant is willing to

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pay for reasonable costs going forward to have the vehicle placed in a protected storage. To the

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extent Fast Towing is interested in selling the vehicle (as it has seemingly attempted to sell it to

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Defendant) this court determines that, on balance, ordering Fast Towing to preserve the vehicle

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(and not sell it) for 60 days while allowing Defendant to conduct the inspection properly accounts

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for the different interests at stake. While the court is cognizant of the constraint imposed by

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COVID-19 it is not clear why this inspection cannot be performed within the next 60 days.
Conclusion

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IT IS THEREFORE ORDERED that Fast Towing shall preserve the 2017 Chevrolet

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Impala (VIN 2G1105S34H9112609) in question and work with Defendant to properly store the

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vehicle and allow access to it for purposes of an inspection.

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IT IS FURTHER ORDERED that Defendant shall pay the reasonable costs associated

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with storing the vehicle over the next 60 days.

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February 16, 2021.
DATED: February 12, 2021

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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