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Trucking Company Sanctioned for Spoliation of Evidence Maintained Electronically

June 9, 2023 By Nancy J. Goodiel

The Western District of Virginia recently sanctioned a trucking company who had received a preservation letter following an accident. After removing most of the information pertaining to the accident, the driver gave away his tablet which had been mounted on the windshield.

Rule 37(e) has four prongs that needed to be satisfied to obtain a ruling for sanctions and an Order to address the loss of evidence with a permissive adverse inference instruction against the driver, which was proportionate response to the prejudice and harm experienced by the other party.

The first prong, the duty to preserve data pertaining to the accident, was met because it is reasonably foreseeable that a tablet containing data might be relevant to future litigation, especially after having received preservation letters pertaining to electronic devices from opposing counsel.

The second requirement was to establish that the electronically stored information was, in fact, lost. In the instant case, a subsequent forensic examination determined that information previously contained on the tablet was missing, and that the information appeared to have been removed from the device.

The third prong of Rule 37(e) requires parties to take reasonable steps to preserve data. Merely providing the electronic device to opposing counsel for forensic analysis does not meet the preservation requirement. The Court found that the third prong for sanctions was met when the record supported that the data was intentionally removed before the device was given away.

The final prong is that the information on the tablet cannot be restored or replaced. This prong was met by requesting in discovery the electronic device at issue and subsequently completing a digital forensic examination of the device, which resulted in an opinion that the data had been removed and was unretrievable.

For the court to impose sanctions, it must find, by clear and convincing evidence, prejudice to the opposing party from the loss of information, or that the party required to preserve acted intentionally to deprive the opposing party. In order to redress the loss, the court instructed the jury that it was permitted, though not required, to presume that the lost data on the electronic device was unfavorable to the owner of the device. The Court ultimately ruled in this matter that the jury instruction was proportionate to the prejudice and harm experienced by the opposing party.