BEST PRACTICES
with
ELECTRONIC DEVICES
and
DISCOVERY
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• Thomas L. Oliver, II, Founding Shareholder
CARR ALLISON
Tom Oliver practices in Carr Allison’s Birmingham,
Alabama office. He is a trial attorney specializing in
complex matters involving employment, professional and
transportation litigation. He has been named a Super
Lawyer in the state of Alabama, Top Lawyer by Corporate
Counsel, and Best Lawyer in America. Mr. Oliver
developed the firm’s “go team” and coordinates
catastrophic accident investigations for various
transportation clients. He assisted in the national
coordinating counsel program for transportation claims
for one of the nation’s largest insurers. Additionally, Mr.
Oliver was designated as regional and statewide counsel
for numerous companies and their insurers.
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After attending this session
you should be able to
understand and comply
with the best practices for
electronic data in your
transportation fleet!
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BEST PRACTICES
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Section One – Spoliation
What is Spoliation?
Spoliation is the “destruction or material alteration
of evidence or the failure to preserve property for
another’s use as evidence in pending or reasonably
foreseeable litigation.” Ashton v. Knight Transp. Inc.,
772 F. Supp. 2d 772, 806. (N.D. Tex., 2011).
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Destroying or altering documents is not
automatically sanctionable. Margaret M. Koesel &
Tracey L. Turnbull, American Bar Association
Spoliation of Evidence ch.1 (2006).
Generally, there must be a duty to preserve evidence
in order for spoliation to be sanctionable.
Whether spoliation of evidence is sanctionable
depends on whether there is a duty to preserve
evidence, and the scope of that duty.
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1.1 When is there a Duty to Preserve Evidence?
Generally, there is no duty to preserve
evidence before litigation is filed, threatened
or reasonably foreseeable unless such duty is
imposed by special circumstances.
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A duty to preserve generally arises under two
circumstances:
1) litigation or reasonably foreseeable
litigation and
2) independent of litigation based on special
circumstances.
Absent notice of litigation or another source
of a duty to preserve, a company may dispose
of documents and other tangible objects as
they see fit without liability.
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A. Duty Arising Under Litigation or Reasonably
Foreseeable Litigation:
A duty to preserve potentially relevant and
relevant evidence arises at the onset of
litigation.
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A duty to preserve may also arise before the
commencement of a lawsuit if the lawsuit is
reasonably foreseeable. Stated another way,
whether a duty to preserve exists depends on
whether the litigation was reasonably
foreseeable at the time the discoverable
document(s) were destroyed.
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For example, a duty to preserve likely exists if
a potential defendant receives a demand
letter, knows a former employee is seriously
considering litigation, or another event or
circumstance has transpired that would
reasonably put a company, or individual, on
notice that a lawsuit is imminent.
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B. Duty Arising Independently of Litigation:
A duty to preserve may also arise
independently of litigation from (a) a contract,
(b) a statute or regulation, (c) a document
retention policy, or (d) other special duties.
Many state and federal statutes require
companies to retain certain types of
documents for specific periods of time.
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Some of these statutes and regulations also
specify the required sanction for destruction
of documents that violate the law.
The sanction most imposed by statute is an
adverse inference, which will later be
discussed in detail. Therefore, it is very
important to know any state and federal
statutes or regulations that may apply to your
line of business.
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Failure to follow a document retention policy
set forth by the company could later result in
substantial sanctions.
Destruction of documents or tangible
property outside the specified period could be
construed as intentional destruction of
evidence. Other special duties may impose
additional sanctions for involvement in
spoliation of evidence.
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For example, attorneys may be sanctioned
under the ethical code for involvement in
spoliation of evidence. Otherwise, absent
notice of litigation or another source of a duty
to preserve, a company may dispose of
documents and other tangible objects as they
see fit without liability.
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1.2 Scope of Duty to Preserve – What Evidence
Must be Preserved?
A. Evidence in a Party’s Possession
Documents and tangible items that are or are
potentially “relevant” must be preserved.
The test is essentially whether the threatened
person would reasonably believe that the
evidence in its possession is relevant.
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Under the Federal Rules of Evidence and
Federal Rules of Civil Procedures “relevance”
is given a very broad scope. Therefore, it is
advisable to err on the side of caution when
deciding whether to preserve a particular
document or item of evidence.
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Though parties are required to take
reasonable steps to preserve evidence, they
are not required to make extraordinary efforts
to retain evidence. Therefore, courts will
weigh factors such as safety, expense, and the
cumbersomeness of retaining the evidence
against the duty to preserve such evidence.
For example, in Conderman v. Rochester Gas
& Electric Corp., 262 A.2d 1068 (N.Y. 1999).
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A utility pole fell on the plaintiffs’ pick-up
truck. The power lines injured the plaintiffs
while they were driving. The defendant utility
company sent an emergency crew to the
scene, who cut the poles into four-foot
lengths and removed them to a landfill. The
plaintiff’s later filed for summary judgment on
spoliation of evidence.
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The trial court granted the plaintiff’s motion
but the appellate court reversed holding that
because the defendant company was
responding to an emergency situation and it
would be unreasonable to impose a duty to
preserve the downed poles as evidence in the
given circumstances.
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B. Evidence in a Third-Party’s Possession
Generally, there is no duty to retain evidence
to aid in future litigation against a third party.
Margaret M. Koesel & Tracey L. Turnbull,
American Bar Association Spoliation of
Evidence ch.1 (2006).
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However, a duty to preserve can arise by
reason of agreement, contract, statute, or
other special circumstance.
A duty to preserve evidence may extend
beyond the parties involved and include
evidence entrusted to their agents, insurers,
experts, etc. In this instance a party may be
held liable for spoliation of evidence it
entrusted to a third party who destroyed that
evidence.
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Other ways to lower risk of spoliation
sanctions include the following:
·If personal injury litigation seems likely,
preserve evidence as if a preservation letter
has been issued even if it has not.
·Offer others involved in the accident a prerepair inspection opportunity before
repairing the vehicle.
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· Make sure to document repairs made to
the damaged vehicle.
· Carefully answer interrogatory and
deposition questions about when the
company anticipated litigation.
· Preserve all replaced or removed parts.
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2. How to Avoid Spoliation - Have and Follow a
Retention Policy
Most documents should be kept for a specific
period of time and then disposed of because
retaining all documents for an infinite amount
of time can be problematic and expensive.
Margaret M. Koesel & Tracey L. Turnbull,
American Bar Association Spoliation of
Evidence ch.2 (2006).
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There are four prevailing reasons to
implement and follow a document retention
program. These include (1) the expense of
storing documents, (2) the ability to locate
documents efficiently, (3) the desire to avoid
sanctions for the improper destruction of
documents, and (4) the consequences in
litigation of retaining documents that should
not have been subject to retention.
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Following a document retention policy does
not prevent spoliation sanctions if the
destruction of evidence occurs after a duty to
preserve arises. Stated another way, one may
not use a document retention policy to
obstruct justice laws.
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However a well-designed document retention
policy can help prevent spoliation sanctions.
For the retention policy to work smoothly in
conjunction with litigation, document
destruction must be suspended upon the start
of litigation, an official investigation into the
company, or when the company should have
reason to know that litigation is imminent.
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A. What to Consider When Designing a Document
Retention Program
A document retention program should be tailored
to fit the needs of the particular company.
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Most importantly the document retention
program should involve and revolve around a
legitimate business purpose. Therefore, when
determining whether a document or tangible
item should be destroyed or preserved the
purpose for discarding the document or item
should be a business purpose.
The program should be suspended or changed
when there is potential litigation or at the
commencement of litigation in order to avoid
accusations of motive behind destruction of
documents or tangible items.
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The company should also educate and remind its
employees of the document retention policy and
its importance.
Where the employee is uncertain about whether
the document should be destroyed or retained
they should first consult with a higher authority
or counsel.
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Following the retention policy regularly is
pertinent. Otherwise, the company is open to
charges that it only follows its document
retention policy when beneficial to destroy
evidence of wrongdoing. If possible, someone
should be in charge of monitoring and
handling the document retention policy.
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B. Document Retention Requirements
Generally a company may decide what the
appropriate time period is for retaining nonpermanent records unless there is an
applicable state or federal statute or
regulation that dictates an appropriate
retention period.
Therefore, the company should familiarize
itself with any state or federal record keeping
requirements.
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C. Suspension of Document Retention Policies
As stated earlier, it is very important to
suspend any document retention policies as
soon as the company has notice of a lawsuit
or reason to know of a potential lawsuit. The
company must take the necessary steps to
preserve potential evidence, which includes
suspending the document retention policy in
regard to documents relevant to that
litigation.
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Failing to suspend document destruction
when a company is aware of threatened or
pending litigation may result in sanctions. See,
Reingold v. Wet ‘N Wild Nevada Inc., 944 P.2d
800 (Nev. 1997) (holding the water park’s
deliberate destruction of the first-aid logs,
before the statute of limitations had run,
amounted to a suppression of evidence).
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D. Electronic Records and Documents
Electronic documents and records are just as
discoverable as hard copy evidence.
Therefore, a company’s data retention policy
must also address electronic data including
emails and other electronic documents.
Margaret M. Koesel & Tracey L. Turnbull,
American Bar Association Spoliation of
Evidence ch.2 (2006).
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Sometimes the form produced in litigation
(electronic vs. hardcopy) can also be
important. If the hard copy evidence contains
the same information but in a form that is not
equally accessible the court may find that the
document has lost its value in the hard copy
form.
Therefore, it is important to consider the
nature of the documentation and its
accessibility when producing it in litigation.
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3. Sanctions for Spoliation of Evidence
A. Sources for Sanctions
Sanctions may be imposed under both federal
and state rules of civil procedure that regulate
discovery procedures. Margaret M. Koesel &
Tracey L. Turnbull, American Bar Association
Spoliation of Evidence ch.3 (2006).
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These sanctions are limited because they can
only reach acts of spoliation that occur during
the lawsuit or following a court order.
This could encourage parties to destroy evidence
before the onset of litigation to avoid sanctions.
However, the court’s inherent authority provides
a source of imposing sanctions for acts of
spoliation outside of the scope of civil procedure
sanctions.
The court’s inherent power allows it to provide
appropriate remedy or sanctions for acts that
obstruct justice.
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B. Factors Courts Consider when Imposing
Sanctions
Courts have significant leeway in deciding
what sanction is appropriate to impose on the
spoliator.
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Some factors that are often considered by
courts include: 1) the culpability of the
spoliating party, 2) the prejudice to the nonoffending party, 3) the degree of interference
with the judicial process, 4) whether lesser
sanctions will remedy any harm and deter
future acts of spoliation, 5) whether evidence
has been irretrievably lost, and 6) whether
sanctions will unfairly punish a party for
misconduct by the attorney.
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These factors do not make up a rigid test
adhered to by all courts, however, they do
shed light on what courts consider when
determining which sanction to impose if any
at all.
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C. Sanctions
i. Adverse Inference
Sometimes the court will impose an adverse
inference against the spoliating party.
The adverse inference sanction to spoliation
of evidence dates back at least to Armory v.
Delamirie, 93 Eng. Rep. 664 (K.B. 1722).
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The adverse inference instruction operates on
the assumption that deliberate destruction of
evidence suggests consciousness of guilt.
Margaret M. Koesel & Tracey L. Turnbull,
American Bar Association Spoliation of
Evidence ch.3 (2006).
The rationales for imposing an adverse
inference include deterrence, remediation
and punishment.
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ii. Exclusion of Evidence or Expert Testimony
Courts often consider exclusion of evidence as an
alternative sanction to dismissal or entry of a default
judgment.
This often results in the spoliator’s inability to
introduce expert testimony on the missing evidence
or any other witness testimony on the missing
evidence. In these cases it’s not uncommon for the
court to award summary judgment because the
spoliating party is unable to prove its case without
the excluded evidence.
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There are two main factors that courts
consider when determining whether to
include or exclude the spoliator’s evidence.
Some courts focus on the probative value of
the destroyed evidence to the non-spoliating
party, while others focus on the prejudice to
the non-spoliating party resulting from the
lost evidence.
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iii. Dismissal and Default Judgment
Dismissal and default judgment are rarely
imposed for spoliation because they are the
harshest sanctions available. These sanctions
are usually imposed when there is a showing
of bad-faith spoliation or in cases where the
prejudice is so severe to the non-spoliating
party that no other remedy is justifiable.
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iv. Other Potential Civil Sanctions
Other potential sanctions include attorney’s
fees, fines, and punitive damages. Some courts
find that to impose monetary sanctions the
spoliator must have acted intentionally or in
bad faith. Others do not require a finding of
bad faith or intentional conduct.
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v. Criminal Sanctions
There are federal statutes enacted that create
criminal penalties for the destruction of
evidence. Margaret M. Koesel & Tracey L.
Turnbull, American Bar Association Spoliation
of Evidence ch. 5 (2006).
For example, Congress passed the SarbanesOxley Act of 2002, which created new criminal
laws and penalties in addition to amending
existing criminal laws and penalties for the
destruction of evidence.
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There is considerable variation from state to
state as to the scope criminal statutes play in
providing penalties for the destruction of
evidence.
Theoretically, criminal sanctions are available
for the destruction and concealment of
evidence during civil litigation; however, no
criminal convictions have ever been reported
for spoliation during civil litigation.
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Independent Actions for Spoliation of Evidence
The majority of courts do not recognize an
independent tort action for spoliation of
evidence. Margaret M. Koesel & Tracey L.
Turnbull, American Bar Association Spoliation
of Evidence ch. 5 (2006).
However, a minority of states recognize an
independent tort claim for spoliation of
evidence.
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Some courts recognize that spoliation may be
remedied through existing tort remedies.
Even states that recognize an independent
tort claim for spoliation of evidence often
limit the tort to intentional causes of action or
to causes of action against a third party.
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Courts in Alaska, New Mexico, Ohio and West
Virginia have recognized a cause of action for
intentional spoliation.
Courts in Indiana, Montana, Alabama and the
District of Columbia have recognized a cause
of action for negligent spoliation.
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Courts in Illinois, Idaho, Louisiana, New Jersey
and Pennsylvania do not recognize an
independent tort for spoliation; however,
these courts have found actions for negligent
spoliation can be stated under general
negligence principles.
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The rationale for allowing an independent tort
for spoliation of evidence is to compensate
the victim for the loss of a prospective lawsuit.
Therefore, the tort generally exists only for
plaintiffs and not for defendants.
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An inherent difficulty with the independent
tort of spoliation is proving damages. It is
very difficult for a plaintiff to assess whether
they would have recovered, and if so, how
much they would have recovered if they had
specific evidence available to them.
Many courts recognize speculation as a
serious concern in spoliation tort claims.
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A. Intentional Spoliation of Evidence
The general consensus on the elements for
intentional spoliation of evidence are: (1)
pending or probable litigation involving the
plaintiff, (2) knowledge on the part of the
defendant that litigation exists or is probable,
(3) willful destruction of evidence by
defendant designed to disrupt the plaintiff’s
case, (4) disruption of the plaintiff’s case, and
(5) damages proximately caused by the
defendant’s acts.
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Some of these factors prove problematic for
the court to determine.
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B. Negligent Spoliation of Evidence
Generally the tort of negligent spoliation
requires (1) existence of a potential civil
action; (2) a legal or contractual duty to
preserve evidence which is relevant to the
potential civil action; (3) destruction of that
evidence; (4) significant impairment in the
ability to prove the lawsuit; (5) a causal
relationship between the evidence
destruction and the inability to prove the
lawsuit; and (6) damages.
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C. Special Considerations in Spoliation Tort
Claims
Courts also consider whether a party’s case
has been “disrupted” when applying the
elements of a spoliation claim. Disruption of a
party’s case tends to be a critical element in
an intentional spoliation tort claim.
Courts also tend to have difficulty determining
whether the spoliation was the proximate
cause of the party’s damages.
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Section Two – Spoliation in Transportation
Litigation
Generally
Two recent cases, Howard v. Alegria, 739 S.E.
2d 95, 105 (Ga. Ct. App. 2013) and Ashton v.
Knight Transp., Inc., 772 F. Supp. 2d 772, 806
(N.D. Tex. 2011) have demonstrated the
severity of sanctions that can be imposed on
trucking companies for failing to preserve
evidence.
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In Ashton, the truck driver allegedly fled the
scene of the accident, falsified his driving logs,
and the private investigator for the trucking
company altered the condition of the truck
before the police could inspect it.
Furthermore, the company’s Qualcomm
messages for an entire year were not
preserved despite a written request from the
police within days of the accident.
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In Howard, the court sanctioned the trucking
company for a series of knowingly false
answers to interrogatory and deposition
questions calculated to gain an advantage
over the plaintiff. Howard v. Alegria, 739 S.E.
2d 95, 105 (Ga. Ct. App. 2013).
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In both of these cases the trucking companies
were basically stripped of its defenses against
liability because of destruction of evidence.
Although these cases would suggest a trucking
company must preserve all evidence after
every accident to avoid losing its defenses for
liability that is not the case.
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2. Duty to Preserve Evidence
Just as in every type of spoliation claim,
whether a duty to preserve exists in a
transportation case depends on the particular
facts of the case. Elaine Stoll, Brian Pokrywka,
& Doug Rennie, A Motor Carrier’s Preservation
Obligations After an Accident: Beyond the
“Save Everything” Approach
Obligations to preserve do not arise
automatically after every accident.
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The most frequent source of an
affirmative duty to preserve evidence is a
reason to anticipate litigation.
For a trucking company, an affirmative
duty is more likely to arise when the
company has reason to expect a personal
injury lawsuit as opposed to a claim for
minor property damage.
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Just as in other types of spoliation cases
jurisdictions differ as to the level of
knowledge the defendant company must
have for a duty to preserve to arise. Some
jurisdictions find a duty to preserve where
the company should have know of an
accident’s potential for litigation, while
others find a duty as soon as litigation
becomes reasonably foreseeable.
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There are other sources of an affirmative duty
to preserve besides the potential for litigation.
These sources include: (1) statutes or
regulations, such as Federal Motor Carrier
Safety Regulations, which mandates retention
of certain records for specific time periods; (2)
the motor carrier’s own policies or practices
for retaining certain evidence under specific
circumstances; (3) a request by law
enforcement; (4) notice that the evidence is
relevant to pending or anticipated litigation;
and (5) a court’s preservation order.
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Reasons that a company should anticipate
litigation may include: (1) bodily injury or
fatality at the accident scene; (2) police
response to the accident scene or
investigation of an accident; and (3) notice of
a plaintiff’s intent to sue or a preservation
letter.
Mere awareness that an accident occurred is
not enough to automatically initiate a duty to
preserve evidence.
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3. Scope of Preservation Duty – What Must be
Preserved?
The scope of the duty to preserve is
dependent upon the circumstances of the
particular case.
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Because the scope of the duty to preserve is
dependent on the circumstances it is hard to
generalize as to what should be preserved.
Some cases have shown that the motor
carrier’s obligation to preserve can extend to
a truck’s electronic data.
The burden of maintaining the electronic data
in some cases is inefficient to outweigh the
other party’s interest in preserving the
evidence.
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A duty to preserve evidence does not last
indefinitely. The cost of preserving a
damaged truck and keeping it out of service
may be enough to justify making repairs after
a reasonable amount of time.
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A reasonable amount of time generally is
enough time to allow the other party a “full
and fair opportunity to inspect” the damaged
vehicle.
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4. When are Sanctions Appropriate?
Whether a court imposes sanctions varies by
jurisdiction. Some factors that generally
increase the risk and severity of sanctions
include (1) finding an affirmative duty to
preserve; (2) a reason to expect a lawsuit at
the time evidence was destroyed or lost; (3)
failure of the company to follow a retention
policy; (4) a finding of bad faith; (5) missing
evidence that’s needed in a prima facie case;
and (6) non-custodial party prejudiced by loss
of evidence.
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5. How to Lower Risks of Spoliation Sanctions
As discussed previously, a retention policy can
help lower a company’s risk for spoliation
sanctions. In transportation cases, a retention
that follows the Federal Motor Carrier Safety
Regulations, which mandates retention of
certain documents and records for specific time
periods, is the first step to lowering the risk of
spoliation sanctions.
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Other ways to lower risk of spoliation sanctions include the
following:
·If personal injury litigation seems likely, preserve
evidence as if a preservation letter has been issued even
if it has not.
·Offer others involved in the accident a pre-repair
inspection opportunity before repairing the vehicle.
·Make sure to document repairs made to the damaged
vehicle.
·Carefully answer interrogatory and deposition questions
about when the company anticipated litigation.
·Preserve all replaced or removed parts.
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6. After Receiving a Preservation Letter
An attorney may ask for more in a
preservation letter than is necessary to
preserve. Therefore, questioning the scope of
the preservation letter can be beneficial.
Furthermore, where preservation is
burdensome asking for preservation costs can
also be beneficial.
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Conclusion
When faced with the decision on whether or
not to preserve documentation or tangible
items air on the side of caution to best avoid
spoliation sanctions. Furthermore, knowing
the state and federal statutes and regulations
that govern retention of documents is
pertinent. Lastly, a data retention policy that
is well planned and followed can help lower
the likelihood of spoliation sanctions.
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Questions, Final Comments and
Contact Information
Thomas L. Oliver, II
CARR ALLISON
100 Vestavia Parkway, Suite 200
Birmingham, Alabama 35216
(205) 949-2942
toliver@carrallison.com
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