United States District Court, M.D. Louisiana
EDWARD D. DIXON,
GREYHOUND LINES, INC., GLI CORPORATE RISK SOLUTIONS, AND JAMES HESTER
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS FOR SPOILATION
RICHARD L. BOURGEOIS, Jr. Magistrate Judge.
Before the Court is a Motion for Sanctions for Spoilation of Evidence (Motion) filed by Plaintiff, Edward Dixon (Plaintiff) on August 20, 2014. (R. Doc. 43). Defendants, Greyhound Lines, Inc., GLI Corporate Risk Solutions and James Hester (Defendants),  filed an Opposition (R. Doc. 45) to Plaintiff's Motion on September 9, 2014. For the reasons given below, Plaintiff's Motion for Sanctions for Spoilation of Evidence is DENIED.
In this personal injury action, Plaintiff claims he sustained injuries while traveling as a passenger on a Greyhound bus on January 3, 2012. (R. Doc. 1-1). While the bus was in transit, a tire blew out. (R. Doc. 1-1 at 1). The bus then pulled to the side of the interstate and the passengers, including Plaintiff, were allegedly instructed to remain on the bus. (R. Doc. 1-1 at 1). According to the Complaint, Defendants contacted a non-party, Southern Tire Mart, LLC (Southern Tire), to change the bus' tire. As Southern Tire worked to repair the blown out tire, Plaintiff left his seat to use the bus' lavatory. While returning to his seat, Plaintiff claims "the bus fell off the jack and slammed to the ground, causing Plaintiff to fall to his knees and sustain injuries." (R. Doc. 1-1 at 1). Plaintiff claims that he reported his injury to the bus' driver, Defendant James Hester, at the time of the incident. (R. Doc. 43-1 at 3-4) (Pl. Depo., R. Doc. 43-3 at 30). According to Plaintiff, Mr. Hester instructed Plaintiff and other injured passengers to wait until the bus reached the "terminal" to fill out a C-4 form (incident report), as there were none on the bus. (R. Doc. 43-1 at 3-4). When he reached the terminal, Plaintiff claims he was not given a C-4 form to fill out, and was instead told to call Greyhound's hotline to report the incident. (R. Doc. 43-1 at 4). Two weeks later, Plaintiff called Greyhound's hotline. (R. Doc. 43-6). Following his call, Plaintiff received a letter from Greyhound dated January 21, 2012, thanking him for "expressing [his] concerns" and apologizing for his "unpleasant experience." (Letter, R. Doc. 43-7).
At his deposition, Mr. Hester testified that he did not remember any passenger, including Plaintiff, reporting injuries sustained during the tire's repair. (R. Doc. 45-1 at 4-5). Mr. Hester likewise did not recall any passengers requesting C-4 forms or instructing any passengers that he did not have C-4 forms on the bus and to ask for reports at the terminals. (Hester Depo., R. Doc. 45-1 at 4-5). Mr. Hester further testified that he filled out an M-7 or trip inspection form when the bus arrived at the terminal, which is routine and required by the Federal Motor Carrier Safety Administration's (FMCSA) regulations, 49 C.F.R. § 396.11(a)(4). (R. Doc. 45 at 2-3); (Hester Depo., R. Doc. 43-4 at 6). According to Defendants, the M-7 form completed by Mr. Hester on January 3, 2012 was only maintained for 3 months, in compliance with both Greyhound's document maintenance policy and the FMCSA's regulations, 49 C.F.R. § 396.11(a)(4).
During discovery, Plaintiff requested all "incident and investigative reports" and all "documents identifying procedure post-accident investigations" performed by Greyhound. (Pl.'s Req. for Prod. Nos. 2 & 25, R. Doc. 43-8 at 3, 9). In their November 26, 2013 responses, Defendants explained they did not have any information relative to Plaintiff's requests. (R. Doc. 43-8 at 3, 9). Plaintiff did not move to compel more complete responses to his discovery requests. At the end of Mr. Hester's April 23, 2014 deposition, Defendants claim Plaintiff's counsel "verbally requested" the M-7 form completed by Mr. Hester on January 3, 2012. (R. Doc. 45 at 3). According to Defendants, their counsel explained that the M7 form no longer existed as it was routinely destroyed 3 months after its creation. (R. Doc. 45 at 3-4). Beyond this verbal request, Defendants suggest Plaintiff did not make another request for the M-7 form or otherwise contact Defendants about the M-7 form until he moved for sanctions.
On August 20, 2014, Plaintiff filed the instant Motion for Sanctions, claiming Defendants "intentionally spoilated evidence by failing to provide [a C-4 incident form] to Plaintiff" and by failing to preserve the M-7 form completed by Mr. Hester on January 3, 2012. (R. Doc. 43-1). Plaintiff moves the Court to sanction Defendants by: (1) "striking every defense to liability Defendant has asserted"; (2) entering an "adverse evidentiary inference instructing the jury that Defendants destroyed [unfavorable] evidence"; and (3) requiring Defendants to pay Plaintiff's reasonable attorney's fees and costs incurred in filing this Motion. (R. Doc. 43-1 at 1). Defendants oppose the Motion suggesting Plaintiff is not entitled to any of the relief sought. (R. Doc. 45). Specifically, Defendants ask the Court to deny relief because (1) Plaintiff cannot show an intentional destruction of the evidence; and the documents at issue were either (2) not created, or (3) not maintained pursuant to Greyhound's retention policy and the FMCSA's regulations. (R. Doc. 45 at 1).
II. APPLICABLE LAW
A party must preserve materials that it reasonably knows or can foresee would be material to a legal or potential legal action. Consolidated Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. 2006). The duty to preserve material evidence arises not only during litigation, but also during the period before litigation when a party knew or should have known that litigation was imminent. It does not depend on a court order. See Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2003). If a party intentionally destroys evidence, the court has the discretion to impose sanctions. Severe sanctions may include "granting default judgment, striking pleadings, or giving adverse inference instructions." Equal Employment Opportunity Comm'n v. Resources for Human Development ( RHD ), 843 F.Supp.2d 670, 672 (E.D. La. 2012).
A party is entitled to an order imposing severe sanctions if it can show that (1) the party with control over the evidence had a duty to preserve it at the time it was destroyed; (2) the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense; and (3) the evidence was destroyed in bad faith. Condrey, 431 F.3d at 203; Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 617, 620, 646 (S.D. Tex. 2010). Typically, the court does not draw an inference of bad faith when the documents are destroyed under a routine policy. Vick v. Tex. Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). However, bad faith may be inferred by evidence that a party has misrepresented the existence of documents or allowed the destruction of documents, and had explanations of spoliation that were not credible. See Tantivity Communications, Inc. v. Lucent Technologies, 2005 WL 2860976 (E.D. Tex. Nov. 1, 2005). Either way, the law is clear that a party is "not entitled" to an adverse inference instruction or to have defenses struck from the pleadings unless it provides evidence that its adversary intentionally and in bad faith disposed of the evidence. Rimkus Consulting Grp., Inc., 688 F.Supp.2d at 614.
A. Duty to Preserve the Evidence
To begin, Defendant had no duty to preserve any C-4 incident form relevant to Plaintiff's alleged injury, where no C-4 form was actually created. In other words, Defendant could not have a duty to preserve something that does not exist.
Turning to the January 3, 2012 M-7 form, Defendants "can only be sanctioned for destroying" the M-7 form if they "had a duty to preserve" it; and that duty arose before its routine destruction. Consolidated Aluminum Corp., 244 F.R.D. at 339. In accordance with 49 C.F.R. § 396.11(a)(4), Greyhound only maintains M-7 forms for 3 months. (R. Doc. 45 at 3). ...