Jaime Guzman, et al. , Plaintiffs, v. Melvin Jones, et al., Defendants CIVIL ACTION NO. L–10–121 Signed March 28, 2013 Counsel Gene Stuart Hagood, Attorney at Law, Alvin, TX, for Plaintiffs. Baldemar Garcia, Jr., Jose I. Maldonado, Jr., Person Whitworth Borchers and Morales, Laredo, TX, for Defendants. Saldana, Diana, United States District Judge MEMORANDUM & ORDER *1 This case results from a motor vehicle collision between a van occupied by Plaintiffs Jaime Guzman and Derrick Lambert and a commercial tractor-trailer operated by Defendant Melvin Jones in the scope of his employment for Defendant Celadon Trucking Services, Inc. (Dkt. 73 at ¶ 1.) Plaintiffs seek compensatory damages for their alleged injuries. (Dkt. 21 at ¶ 5; Dkt. 73 at ¶ 1.) Defendants have conceded liability for the accident but contest the issue of damages. (Dkt. 21 at ¶ 5.) Pending is Plaintiffs' Motion for Sanctions against Defendant Celadon. (Dkt. 73.) The Motion arises out of Celadon's failure to preserve electronically stored information (“ESI”), specifically the collision-related electronic control module (“ECM”) data for the tractor involved in the collision. (Id. at ¶ 4.) It seems that the ESI was deleted prior to the filing of this action. (Id. at ¶¶ 5–7.) However, Plaintiffs did not learn about this circumstance until well into the course of discovery proceedings after representations by Defendant that the data was indeed available. (Dkt. 38, Attach. 14; Dkt. 73 at ¶¶ 13, 14.) As sanctions, Plaintiffs seek to preclude or limit the testimony of a defense expert, Douglas Morr, a biomechanical engineer who would likely testify that the accelerations and forces experienced by Mr. Guzman during the collision were insufficient to cause any injury or exacerbate any preexisting condition. (Dkt. 73 at ¶ 16, 17, 26; Attach. 19 at 8.) According to Plaintiffs, the expert's testimony should be precluded because speeds, breaking, throttle position, RPMs, and stops would have been electronically recorded by the tractor's ECM. (Dkt. 73 at ¶ 17.) In the alternative, Plaintiffs request an adverse inference instruction to the jury. (Id. at ¶ 26.) Plaintiffs also request monetary sanctions in the form of expenses and attorney's fees. (Id.) For the reasons discussed below, Plaintiffs' Motion for Sanctions (Dkt. 73) is hereby DENIED to the extent that they seek to preclude or limit Celadon's biomechanical engineer from giving expert testimony. The motion is further DENIED to the extent that Plaintiffs seek an adverse inference instruction to the jury. Background The relevant facts appear to be undisputed. (Dkt. 76 at ¶ 2.) The collision between Plaintiffs and Defendant Jones occurred on June 13, 2009. (Dkt. 73 at ¶ 1.) On June 17, 2009, the Law Office of John R. Solis sent a fax to Celadon. (Dkt. 73, Attach. 2.) The fax informed that the office represented Jaime Guzman in a claim for personal injuries sustained as a result of an accident that occurred with one of Celadon's employees four days prior. (Id.) The fax did not request access to the tractor involved in the collision for purposes of an ECM download. (Id.; Dkt. 76 at ¶ 2.) Nor did the fax specifically request that the tractor be kept out of service. (Dkt. 73, Attach. 2; Dkt. 76 at ¶ 2.) Celadon acknowledged receipt of the fax on the same day it was sent. (Dkt. 73, Attach. 3.) For over a month, the tractor was kept out of service. (Dkt. 73 at ¶ 3.) However, on July 24, 2009, for reasons that will be discussed below, Kenneth Carpenter, Celadon's Liability Claims Administrator, returned the tractor to service.[1] (Id.; Dkt. 70, Attach. 3 at 12–15, 21–22.) *2 ECMs of the type in question record rapid deceleration events. (Dkt. 73 at ¶ 4.) This data can be downloaded via software named PowerSpec. (Dkt. 76 at ¶ 6.) PowerSpec records and stores the details[2] of only the last three sudden decelerations. (Dkt. 70, Attach. 1 at 39–42; Dkt. 73 at ¶ 4.) It also records the total number of these events since the last reset. (Dkt. 70, Attach. 1 at 39–42; Dkt. 73 at ¶ 4.) However, if the ECM has recorded the details of three rapid deceleration incidents for a particular tractor and there is an additional rapid deceleration event, the ECM system records the latest event by erasing from its memory the oldest of the previous three. (Dkt. 70, Attach. 1 at 41; Dkt. 73 at ¶ 4.) In other words, the newest event overrides the oldest, leaving only three events stored in the ECM's memory. (Dkt. 70, Attach. 1 at 41; Dkt. 73 at ¶ 4.) According to Denzil Tuttle, Celadon's Director of Service Center Maintenance, a rapid deceleration event occurs, on average, once every 12,000 miles. (Dkt. 70, Attach. 1 at 49; Dkt. 73 at ¶ 5.) For purposes of the instant case, this means that earlier ECM data on rapid decelerations “easily could have been lost” in the 36,000 to 40,000 miles that the tractor was driven in the months after the collision. (Dkt. 70, Attach. 1 at 49; Dkt. 73 at ¶ 5.) Although PowerSpec is available, Celadon uses Insite software. (Dkt. 70, Attach. 1 at 38–39; Dkt. 76 at ¶ 6.) Insite provides more details with respect to maintenance information than PowerSpec. (Dkt. 70, Attach. 1 at 38–39; Dkt. 76 at ¶ 6.) At his deposition, Mr. Tuttle would be asked, “To retrieve via download the rapid deceleration or hard breaking ... can that be done through the Insight [sic] software?” (Dkt. 70, Attach. 1 at 38.) He would respond, “I am not aware that it can be, and I'm not sure.” (Id.) In January 2010, Defendant Jones left the employment of Celadon and another driver was assigned to his tractor—the same tractor involved in the accident. (Id.) Following policy, Celadon conducted an inbound inspection (“IBI”) of the tractor and reset of the ECM. (Dkt. 70, Attach. 1 at 42–43; Dkt. 73 at ¶ 6.) A reset wipes out all information, including any rapid decelerations. (Dkt. 70, Attach. 1 at 42; Dkt. 73 at ¶ 6.) Thus, assuming the collision information had not been erased by subsequent rapid decelerations, such would surely have been deleted by Celadon's IBI reset. (Dkt. 70, Attach. 1 at 42.) An ECM download does not appear to have taken place at any time before the reset. (Dkt. 73 at ¶ 8.) The parties initially tried to settle the dispute related to Plaintiffs' injuries, but after over a year of unsuccessful attempts, Plaintiffs filed suit in state court on September 23, 2010. (Dkt. 73 at ¶ 13.) On October 29, 2010, the suit was removed to district court. (Dkt. 1.) On December 21, 2010, Plaintiffs propounded written discovery to Defendants. (Dkt. 73 at ¶ 13.) In answering one interrogatory, Defendants stated that there were no “files, documents ... which did or might contain information relevant to this incident ... destroyed or otherwise disposed ....” (Id.) Plaintiffs submitted Requests for Production 54, 55, 84, 158, 159, 173, and 174, which sought, in relevant part, the collision-related ECM data for the tractor. (Id.) Celadon responded that it would “supplement with responsive documents, if any” as to Requests 54, 55, 84, 158, and 159. (Id.) Requests 173 and 174 sought documents and data stored in the memory of the ECM for the tractor at the time of the incident and the dates and data downloaded from the ECM. In response, Celadon stated, “Please see the unit maintenance file.” (Id.; Attach. 10 at 3.) *3 Thereafter, Plaintiffs' counsel sent numerous letters to Celadon's counsel in attempting to obtain the collision-related ECM data. (Id. at ¶ 14.) In response to the first of these letters, dated March 15, 2011, Celdaon's counsel replied that the ECM information was forthcoming. (Dkt. 73, Attachs. 12, 13.) Plaintiffs' counsel sent additional letters on the following dates: March 22, 2011 (Dkt. 73, Attach. 14); June 20, 2011 (Dkt. 73, Attach. 15 at 2); and July 20, 2011 (Dkt. 73, Attach. 16). The record, however, is silent as to whether Plaintiffs received a response. On October 12, 2011, Plaintiffs' counsel sent a final letter demanding the ECM data. (Dkt. 73, Attach. 18.) Defense counsel responded on October 14, 2011 with a letter stating, “Celadon has confirmed that it doesn't have ECM for this accident. The data [sic] automatically downloaded only in accidents resulting in fatality, and if the ECM is not requested soon after the accident, it is not preserved.” (Dkt. 38, Attach. 14.) On June 19, 2012, Mr. Tuttle and Mr. Carpenter were deposed. (Dkt. 70, Attachs. 1, 3.) At his deposition, Mr. Carpenter stated that with the approval of Ken Core, Celadon's Vice President of Risk Management, he developed Celadon's unwritten policy concerning when a hold is placed on ECM data. (Dkt. 70, Attach. 3 at 11–12, 22–24.) Mr. Carpenter explained that he did not conduct legal research about litigation holds of electronic data before he created the policy and, in fact, was not aware of any related legal requirements. (Id. at 26.) He described the unwritten policy as follows: We look at, number one, fatalities; number two, what we consider extremely serious injuries, potentially would result in a fatality; and then would at that point in time preserve the Qualcomm data, because that will disappear within, I think, a year, six months to a year, and logs, which will disappear within six months. And our policy is to hold or keep 30 days prior to, including the date of the loss, and 30 days prior. And normally we'll put a hold, not necessarily on the ECM data, but we'll put a hold on the tractor, not allowing any repairs. And those types of accidents, I will contact an attorney right away; get the services of a reconstructionist to go out, do scene investigation, pictures of the tractor measurements, whatever they do. And then we'll hold the tractor for a period of time, generally 30 to 60 days, to see if we get a letter of rep. If we get a letter of rep, we'll put that attorney on notice that they have X number of days in which to inspect the tractor before we get it repaired and put it back in service. ... [B]ut there's so many variables to it. We'll even hold the tractor for a period of time, even though there's no damage to it. But it's just—we just take it as a case-by-case basis, as far as our evaluation of what we should do. (Id. at 23–24.) After Mr. Carpenter explained the policy, he stated, “[I]f I felt the ECM data would have been important in this case and the injuries were such, the tractor would have been put on a safety hold or a hold.” (Id. at 28.) Defense counsel then questioned him as to his knowledge of Plaintiff Guzman's injuries at the time that the tractor was placed back in service: Q. What did you know about Mr. Guzman's injuries as of July 24, 2009, when the truck was released to go back into service? A. We knew he had injuries, did not know the seriousness of the injury. Q. So it could have been very serious injuries that required surgery later on or could have been simple strain/sprain that he would have recovered in a few weeks? A. Could have been either one. We've had those situations that occur all the time. (Id. at 28–29.) Mr. Carpenter then explained that although an ECM download would have been available for the tractor in July of 2009, “it would not have provided any—from my understanding, would not have been provided any crash data. ... [but] general data that we obtained when it was done by the dealership or by a person employed by the trucking—the engine company.” (Id. at 29–30.) In other words, Mr. Carpenter believed that only diagnostic information was available from the download, similar to when “you take your car in and they do a diagnostic.” (Id. at 32.) The deposition also revealed that Mr. Carpenter was never trained as to what kind of data is stored within the ECM device involved here (id. at 31–32), and that he was unfamiliar with the different types of information that can be downloaded using Insite and PowerSpec (id.). Plaintiffs first learned of the January 2010 reset of the collision-related ECM data at the depositions of Mr. Tuttle and Mr. Carpenter. (Dkt. 73 at ¶¶ 14, 15, 24.) Discussion I. Legal Standard *4 Spoliation is the destruction or the significant and meaningful alteration of evidence. Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010). Such deletions, alterations, and loses will not constitute spoliation unless there is (1) a duty to preserve the information, (2) a culpable breach of that duty, and (3) resulting prejudice. Id. A duty to preserve generally applies when a party has notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation. Id. The culpability required for spoliation is bad faith, rather than mere negligence. Id. Bad faith means destruction for the purpose of hiding information, Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (2008), and requires actual knowledge that the deleted evidence was relevant to plaintiff's claims, see King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th. Cir. 2003). As a general rule, in the Fifth Circuit, absent bad faith, the severe sanctions of granting default judgment, striking pleadings, or giving adverse inference instructions may not be imposed. Russell v. Univ. of Tex. of Permian Basin, 234 Fed.Appx., 195, 208 (5th Cir. 2007); Condrey v. SunTrust Bank of Ga., 431 F.3d 191, 203 (5th Cir. 2005); King v. Ill. Cent. R. R., 337 F. 3d 550, 556 (5th Cir. 2003); United States v. Wise, 221 F. 3d 140, 156 (5th Cir. 2000); Vick. v.Tex. Emp't Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). II. Analysis As to the allegations of spoliation,[3] Defendants had a clear duty to preserve. Also, for the sake of argument, it can be assumed that there was prejudice. However, the facts do not support a finding that there was a culpable breach of the duty to preserve. Here, the loss of the ECM data is linked to Mr. Carpenter's decision to place the tractor back into service. (Dkt. 70, Attach. 3 at 12–15, 21–22; Dkt. 73 at ¶ 3.) Despite Mr. Carpenter's decision, there is no indication that it was made in bad faith, or with the intent to keep the ECM data out of Plaintiffs' hands. See Rimkus, 688 F. Supp. at 644. Rather, Mr. Carpenter was not trained in downloading ECM data, including the two types of software that were available to do so. (Dkt. 70, Attach. 3 at 31–32). And any prior experience he had with collision-related ECM downloads had simply failed to yield any useful information. (Id. at 27–32.) Indeed, Mr. Carpenter's actions may have been in part due to Celadon's unwritten hold policy. To the extent that Plaintiffs argue that the failure to have a written policy amounts to bad faith (Dkt. 73 at ¶ 19), such an argument is unavailing. Plaintiffs rely on case law from the Southern District of New York for the proposition that “the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.” Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of America Sec., L.L.C., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010). However, unlike those courts, the Fifth Circuit has held that gross negligence is not enough to establish culpability for purposes of spoliation. See, e.g., Rimkus, 688 F. Supp. at 615, 642. What is required is bad faith. Id. Celadon's litigation hold policy itself, and whatever variance Celadon took with respect to that policy, did not rise to bad faith. The policy and any related variance seem to be the result of nothing more than Mr. Carpenter's ignorance of the law and lack of training. (See Dkt. 70, Attach. 3 at 26, 29.) Conclusion *5 For the above reasons, Plaintiffs' Motion for Sanctions (Dkt. 73) is hereby DENIED to the extent that they seek to preclude or limit Celadon's biomechanical engineer from giving expert testimony. The motion is further DENIED to the extent that Plaintiffs seek an adverse inference instruction to the jury. The Court strongly encourages the parties to resolve the issue of monetary sanctions without its intervention. If the parties are unable to do so, Plaintiffs' brief on monetary sanctions shall be filed on or before April 11, 2013. Defendants may file a response on or before April 18, 2013. IT IS SO ORDERED. Footnotes [1] Mr. Carpenter was the only person at Celadon who could decide whether a tractor would be placed out of service to preserve its ECM data. (Dkt. 70, Attach. 3 at 25–26; Dkt. 73 at ¶ 3.) [2] These details include the following: “time stamps and related data from 60 seconds before to 15 seconds after the sudden deceleration event or collision occurred, vehicle MPH at one second intervals, engine RPM at one second intervals, engine load percentage at one second intervals, throttle percentage at one second intervals, brake pedal status (on/off) at one second intervals, and malfunction indicator lamp status at one second intervals.” (Dkt. 73 at ¶ 4.) [3] Allegations of spoliation are addressed in federal courts through the inherent power to regulate the litigation process if the conduct occurs before a case is filed. Chambers v. NASCO, Inc., 501 U.S. 32, 42–46 (1991); Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1408 (5th Cir. 1993). If an applicable statute or rule can adequately sanction the conduct, that statute or rule should ordinarily be applied rather than a more flexible and expansive inherent power. Chambers, 501 U.S. at 50. When inherent power does apply, it is “interpreted narrowly, and its reach is limited by its ultimate source—the court's need to orderly and expeditiously perform its duties.” Newby v. Enron Corp., 302 F.3d 295, 302 (5th Cir. 2002).