WES MORGAN and LESLIE MORGAN, Plaintiffs, v. U.S. XPRESS INC., Defendant 4:03-CV-88 (CAR) United States District Court, M.D. Georgia, Columbus Division Filed July 05, 2005 Counsel Charles Austin Gower, James Frank Myers, III, Teresa Thomas Abell, Columbus, GA, for Plaintiffs. John M. Phillips, K. Stephen Powers, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga, TN, Michael F. Coogan, Atlanta, GA, for Defendant. Royal, C. Ashley, United States District Judge ORDER ON MOTION FOR SANCTIONS *1 This case is presently before the Court on Plaintiffs' Motion for Sanctions [Doc. 74] and Memorandum in Support [Doc. 79]. Defendant filed its Response [Doc. 93] and an Amendment to its Response [Doc. 98]. Plaintiffs filed their Reply [Doc. 121], and the Court held a hearing on this matter on June 21, 2005 [Doc. 127]. Defendant then filed a Supplement to its Response [Doc. 128], and Plaintiffs filed a Supplement to their Reply [Doc. 130]. Having considered all the documents filed including letters from counsel, motions, briefs, amendments, and the evidence and testimony presented to the Court at the hearing, the Court hereby finds that Plaintiffs' Motion for Sanctions must be DENIED. In their motion and at the hearing, Plaintiffs claim to have discovered that Defendant U.S. Xpress and its defense counsel have willfully and in bad faith concealed from the Court and Plaintiffs the existence of electronic tracking data on its computer system which could have identified the U.S. Xpress truck involved in the wreck at issue in this case and further spoliated such evidence so that it is no longer discoverable. Plaintiffs request that the Court strike Defendant U.S. Xpress, Inc.'s Answer and enter a default judgment as to liability as a sanction for Defendant's alleged discovery abuse. Plaintiffs also request that the Court enter sanctions against Defendant and defense counsel, ordering them to pay reasonable attorney fees, expenses, and costs incurred as a result of Defendant's alleged behavior. Defendant disputes Plaintiffs' allegations, providing testimony as well as evidence to show that it complied with discovery to the best of its ability. The recovery Plaintiffs seek is severe, and while the Court recognizes that Rule 26 of the Federal Rules of Civil Procedure imposes a duty on the parties to engage in pretrial discovery in a responsible manner and that Rule 26 encourages the imposition of sanctions for violations of the rule, the Court does not find that the relief requested is warranted at this time. Green Leaf Nursery v. E.I. DuPont De Nemours and Co., 341 F.3d 1292, 1305 (11th Cir. 2003). After reading the briefs and upon hearing the conflicting evidence and testimony presented at the hearing, the Court finds that substantial issues of fact exist as to Defendant's conduct during discovery. One issue central to Plaintiffs' allegations of spoliation is the fact that tracking data, which only remains live on Defendant's system for a short time, is supposed to be backed up to tapes and stored. It is undisputed that the backup tapes that might have contained information relevant to the accident at issue in this case were written over by Defendant contrary to their data retention policy. Plaintiffs allege that this was done intentionally to keep Plaintiffs from being able to acquire such information. Defendant offered testimony from its employees that this was done by mistake, and that they are adhering to their policy in every other way possible. In the Eleventh Circuit, it is permissible to draw an adverse inference from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith. Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir.1975). “Mere negligence” in losing or destroying the records is not enough for an adverse inference, as “it does not sustain an inference of consciousness of a weak case.” Id. Thus, under this “adverse inference rule,” the Court will not infer that the missing backup tape contained evidence unfavorable to Defendant unless the circumstances surrounding the tape's absence indicate bad faith, e.g., that Defendant tampered with the evidence. See Bashir v. Amtrak, 119 F. 3d 929, 931 (11thCir. 1997). *2 Similar to Stanton v. National Railroad Passenger Corporation, 849 F. Supp. 1524, 1528 (M.D. Ala. 1994), the Court finds that there exists a question of genuine material fact as to the motivation behind Defendant's actions during discovery and specifically in regards to the missing back up tapes. By Defendant's own testimony and evidence, the tapes were supposed to be stored for two years before being written over, and yet, the pertinent tapes were written over well in advance of this time. Defendant's testimony does not demonstrate that the tape was destroyed as part of standard U.S. Express procedures as allowed under Vick, 514 F.2d at 737. Rather, Defendant's testimony shows that the evidence was destroyed contrary to their policy and procedure. Plaintiffs' draw the conclusion that this was done in bad faith. Defendant's offered testimony that it was a mistake and that Defendant wishes that it could produce the tapes to clear up many questions in this case. Because neither Plaintiffs nor Defendant can definitively explain the circumstances surrounding the destruction of the back up tapes, the Court finds that there is a genuine issue of material fact regarding the motivation of Defendant's conduct. The Court is not sufficiently persuaded by Plaintiffs' evidence to find that Defendant engaged in such evasive conduct during discovery and that striking its answer, entering default judgment, and imposing sanctions is necessary in this case. Accordingly, Plaintiffs' motion is DENIED. The Court notes that this issue of genuine material fact not only defeats Plaintiffs' motion. It also means that, unless Defendant presents arguments and evidence entirely untainted by the possible spoliation of this evidence, this genuine issue of material fact will most likely render Defendant unable to prevail as a matter of law because of the adverse inference drawn by the missing tapes in Plaintiffs' favor for purposes of a motion for summary judgment. See Stanton, 849 F. Supp. at 1528. The Court, however, has not reached this conclusion and simply raises this for the benefit of counsel for the pending motion. SO ORDERED this 1st day of July, 2005. LTH