Lee v. Horton et al
Filing
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ORDER adopting 61 Report and Recommendations and denying 34 Motion for Sanctions. Signed by Judge Jon Phipps McCalla on 9/25/18. (Sullivan, Daniel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CHRISTIE LEE,
Plaintiff,
v.
RODNEY HORTON and KROGER
DEDICATED LOGISTICS CO.,
Defendants.
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No.: 2:17-cv-2766-JPM-tmp
ORDER ADOPTING REPORT AND RECOMMENDATION AND
DENYING PLAINTIFF’S MOTION FOR DISCOVERY SANCTIONS
Before the Court is the Report and Recommendation of the Magistrate Judge entered on
September 4, 2018. (ECF No. 61.) The Magistrate Judge recommends that the Court deny
Plaintiff Christie Lee’s Motion for Sanctions against Defendants Rodney Horton and Kroger
Dedicated Logistics Co (“Kroger”). (See ECF No. 34.) Lee filed a timely objection to the
Magistrate Judge’s Report on September 13, 2018. (ECF No. 72.)
Upon de novo review, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge and finds that Defendants did not have a duty to preserve the electronic logs
until June 14, 2017. Accordingly, Lee’s Motion for Sanctions is DENIED. The Court’s finding
on the question of a duty to preserve is dispositive on the Motion for Sanctions, so the Court
need not consider the question of prejudice at this time.
I.
Background
Horton and Lee collided in a car accident on October 25, 2016. (ECF No. 34 at 1.) 1 Lee
alleges that Horton, a Kroger truck driver, was negligent and that Kroger, as his employer,
should be held vicariously liable for the injuries she suffered. (ECF No. 1; see also Lee’s Mot.
Sanctions, ECF No. 34 at 274.) Lee’s attorney asked each Defendant to preserve evidence
related to the accident on June 14 and July 14 of 2017. (ECF No. 34 at 284-93.) One of Lee’s
requests in these preservations letters concerned the daily logs produced by the truck’s electronic
logging device for the day of the collision and the six months preceding it. (Id. at 286, 291.)
Defendants claim that this data was automatically overwritten six months after the collision and
before Lee sent her preservation letters. (ECF No. 34 at 304.) Defendants instead provided Lee
with Horton’s driver file for the day of and month preceding the accident. (ECF No. 37 at 467.)
Lee filed a Motion for Sanctions on July 6, 2018 alleging that Defendants’ had
intentionally destroyed the daily electronic logs. (ECF No. 34.) Lee argues that the logs in
question may have allowed her to show “that the collision was caused by Defendant Rodney
Horton, a fatigued, sleep-deprived driver, on the wheels of a tractor-trailer.” (ECF No. 34 at
277.) Lee alleges that Federal Rule of Civil Procedure 37(e) required the preservation of the
daily logs, that their loss caused her prejudice, and that the court should find that Defendants
acted with the intent to deprive her of the evidence. (Id. at 282.)
In his Report and Recommendation, the Magistrate Judge concluded that Lee had not
shown that Kroger had a duty to preserve the daily electronic logs before receiving Lee’s
preservation letters. (ECF No. 61 at 692.) The Magistrate Judge also submitted that Lee was not
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All citations to page numbers in docket entries are to the CM/ECF PageID number.
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prejudiced by any alleged spoliation, because the trip sheets Kroger produced contain
substantially similar information. (ECF No. 61 at 693-694.)
In her timely objection, Lee argues that she has shown that Defendants should have
known that the daily electronic logs would have been relevant to future litigation from the date of
the accident. (ECF No. 72 at 727-728.) Lee also argues that she has suffered prejudice from the
alleged spoliation, because certain alleged irregularities suggest the trip sheets may be
inaccurate. (Id. at 728.) She also argues that she has suffered prejudice because the daily
electronic logs contain information related to “what actually happened inside the truck” as well
as driver fatigue, and “compliance with statutory mandated hours of service.” (Id. at 729.)
Finally, Lee objects that the evidence shows Defendants have acted in bad faith by failing to
preserve the daily electronic logs. (Id.)
II.
Legal Standard
a. Standard of Review
“Within 14 days after being served with a copy of the recommended disposition, a party
may serve and file specific written objections to the proposed findings and recommendations.”
Fed. R. Civ. P. 72(b)(2). “When no timely objection is filed, the court need only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.” Fed.
R. Civ. P. 72(b) advisory committee note.
When a timely objection has been filed, “[t]he district judge must determine de novo any
part of the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3).
The portions of a magistrate judge’s recommendation as to which no specific
objections were filed are reviewed for clear error. See Fed. R. Civ. P. 72(b) advisory committee
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notes; Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (noting
that when a party makes a general objection, “[t]he district court’s attention is not focused on any
specific issues for review, thereby making the initial reference to the magistrate useless.”). “A
general objection to the entirety of the magistrate’s report has the same effects as would a failure
to object.”
Howard, 932 F.2d at 509.
Moreover, the “failure to properly file objections
constitutes a waiver of appeal.” See Howard, 932 F.2d at 508 (citing United States v. Walters,
638 F.2d 947, 950 (6th Cir. 1981)).
b. Preservation of Electronic Evidence
Federal law provides the legal standard governing the preservation of electronically
stored information and what, if any, sanctions should be imposed for spoliation. See Adkins v.
Wolever, 554 F.3d 650, 652 (6th Cir. 2009); Fed. R. Civ. Pro. 37(e). Under Rule 37(e), the
Court must first determine whether the information in question should have been preserved and
whether a party took reasonable steps to do so. “An obligation to preserve may arise when a
party should have known that the evidence may be relevant to future litigation, but, if there was
no notice of pending litigation, the destruction of evidence does not point to consciousness of a
weak case and intentional destruction.” Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th
Cir. 2010) (internal citations omitted).
If there was a duty to preserve, the Court must next consider whether there was prejudice
to the party seeking the information, and “may order measures no greater than necessary to cure
the prejudice.” Fed. R. Civ. Pro. 37(e)(1). A finding of prejudice does not require the Court to
find that the information in question was dispositive. See McCarty v. Covol Fuels No. 2, LLC,
644 F. App'x 372, 379 (6th Cir. 2016). More severe sanctions are only appropriate upon a
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finding that a “party acted with the intent to deprive another party of the information’s use.”
Fed. R. Civ. Pro. 37(e)(2). “A showing of negligence or even gross negligence will not do the
trick.” Applebaum v. Target Corp., 831 F.3d 740, 745 (6th Cir. 2016). Otherwise, “[a] federal
court's inherent powers include broad discretion to craft proper sanctions for spoliated evidence.”
Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014).
III.
Discussion
The Court considers whether Kroger had a duty to preserve the electronic daily logs. The
Magistrate Judge concluded that Kroger did not have a reason to foresee this litigation because
neither driver received a traffic citation for the collision, Lee did not seek medical treatment in
the immediate aftermath, and damage to Lee’s vehicle appeared minimal. (ECF No. 61 at 693.)
The Magistrate Judge also noted that Kroger likely thought Lee was responsible for the accident.
(Id.) The Magistrate concluded that Kroger had “no reason to believe that Lee would file a
lawsuit” and therefore no duty to preserve until June 14, 2017, when Kroger received the first
preservation letter from Lee and after the daily electronic logs had already been overwritten.
(Id.)
Lee argues that the duty to preserve arose on the day of the accident. Lee objects that
Kroger’s incident report contains boilerplate language which states that the report is being
prepared in anticipation of litigation. (ECF No. 72 at 727.) While no traffic citations were
issued at the accident, Lee further objects that the presence of police and the physics of a crash
between a car and a tractor trailer is sufficient notice that the accident was serious. (Id.) Lee also
objects that the evidence clearly shows that Kroger and Horton were negligent, so Defendants
must have been on notice that they would be sued. (Id. at 728.) Finally, Lee argues that Kroger
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“does not genuinely dispute liability” in this case because it did not file a cross complaint against
Lee.
Lee objects that Kroger’s incident report contains boilerplate language that “these reports
and this document have been prepared in anticipation of litigation under the direction of legal
counsel. They are confidential and not to be released to any person unless approved by legal
counsel.”
(ECF No. 72 at 727, ECF No. 34 at 354.) The Court finds that this language is
insufficient to demonstrate that Kroger had a duty to preserve. In a landmark case on the
preservation of electronically stored information, a court found that a duty to preserve arose
when company employees began to title their emails “UBS Attorney Client Privilege.” Zubulake
v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003). The Zubulake court noted that
this showed a duty to preserve in part because “it appear[ed] that almost everyone associated
with Zubulake recognized the possibility that she might sue.” Id. The Zubulake court relied on
specific deposition testimony in which UBS employees admitted they anticipated a lawsuit from
the plaintiff. Id. While Zubulake is not binding, the Court finds it extremely persuasive. The
presence of boilerplate language on a Kroger incident report form is not sufficient to support a
finding that Kroger should have known that the daily electronic logs would be relevant to future
litigation. See Beaven, 622 F.3d at 553.
Upon a de novo review of the entire record, the Court concurs with the Magistrate Judge.
Lee’s objections do not respond to the relevant inquiry, namely whether Kroger should have
anticipated litigation. (See ECF No. 72 at 727.) Lee’s objections do not account for the fact that
no traffic citations were issued and that no immediate medical attention was sought by Lee. Lee
is correct that the presence of police would tend to weight in favor of a finding of a duty to
preserve, but when the police view the scene and make no initial determination of a traffic
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violation, a party is altogether less likely to be on notice that litigation may arise. Similarly,
while a crash between a car and a tractor trailer may be cause for concern, when both drivers
emerge from that crash without any immediate need for medical attention, a party is not put on
notice that there will be a lawsuit in future. When considering the circumstances of the crash as
they were understood by Horton at the time, and absent further specific evidence of anticipation
of litigation, the Court finds that no duty to preserve arose until June 14, 2017.
IV.
Conclusion
Upon de novo review, the Court ADOPTS the Report and Recommendation of the
Magistrate Judge and finds that Defendants did not have a duty to preserve the electronic logs
until June 14, 2017. Accordingly, Lee’s Motion for Sanctions is DENIED. The Court’s finding
on the question of a duty to preserve is dispositive on the Motion for Sanctions, so the Court
need not consider the question of prejudice at this time.
IT IS SO ORDERED, this 25th day of September, 2018.
/s/ Jon McCalla
JON P. McCALLA
UNITED STATES DISTRICT JUDGE
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