THOMAS B. RUSSELL, Senior District Judge.
Defendant, E-Z-GO Division of Textron, Inc. filed a motion requesting the Court to reconsider its motion in limine ruling permitting Plaintiffs to introduce evidence and testimony of alleged spoliation of evidence during the trial of this matter. [DN 223 (Motion for Reconsideration); DN 199 (Memorandum Opinion and Order).] Due to the quickly-approaching trial scheduled in this matter and the Court's desire to give the parties as much notice as possible of its decision, the Court issued a brief Order granting Defendant's motion and explaining that a Memorandum Opinion would issue shortly after. In the meantime, Plaintiffs responded, [DN 228.] Now fully briefed, this matter is ripe for adjudication. For the reasons explained in detail below, the Court will adhere its prior ruling
The Court has recited the full facts of this case at length in previous opinions. [See DN 198; DN 199; DN 230.] In short, the Plaintiffs in this action brought suit against Defendant E-Z-GO Division of Textron, Inc. following a rollover incident involving an electric vehicle that led to the tragic death of fifteen-year-old Jordan Kori Jackson on July 25, 2010 in Grayson County, Kentucky. [See DN 1-2 (Complaint).] The golf cart/personnel carrier-type vehicle (the "Vehicle") was a 1993 E-Z-GO PC-4X manufactured and sold by Defendant. In this suit, Plaintiffs allege that the Vehicle's design was defective, that E-Z-GO failed to provide adequate warnings regarding its safe operation, and that E-Z-GO breached express and implied warranties. [See id. at 4-7.] This jury trial in this matter began on August 2, 2018.
During the pretrial phase of this case, Defendant filed a motion in limine to exclude testimony by witnesses or references by counsel to any spoliation of evidence Plaintiffs allege Defendant may have engaged in. [DN 165.] Specifically, Plaintiffs allege that Defendant spoliated evidence "in 2004 when it implemented its TeamConnect litigation database and destroyed all of the data before 2001, in its previous litigation database, Corporate Law Pack." [DN 194 at 2.]
In its initial ruling on Defendant's motion in limine, the Court agreed with Defendant that "Plaintiffs have not made the requisite showing of fault, whether through negligence or intent, necessary for an adverse inference instruction" as to spoliation. [DN 199 at 7.] However, the Court further stated:
[Id. at 9.]
Defendant then filed a motion requesting the Court to reconsider that ruling. [DN 223.] The Court issued an Order granting the motion and holding that it would preclude evidence of alleged spoliation at trial. [DN 225.] Thereafter, the Court allowed Plaintiffs the chance to respond. Plaintiffs did so, [DN 228], and having now read all parties' arguments and reviewed the applicable law, the Court issues the instant Memorandum Opinion fully explaining its decision.
"In 2004 Textron converted its Legal Department matter management system from a discontinued and increasingly inadequate management system called `Corporate LawPack' to the current management system named `TeamConnect.'" [DN 165-1 at 2-3.] Defendant argues that, at the time, it had a document retention policy in place "relating to `Litigation Files' [which] was dated 1997, and [that policy] preceded the data transfer [conducted in 2004] by 7 years and the accident in this case by 13 years." [Id. at 8.] Pursuant to that 1997 "records management policy," Defendant's practice was to "maintain[] litigation files only for three years following closure" of a claim or lawsuit. [Id.]
[Id.] In its motion in limine, Defendant argues that "[t]he fact that the Textron Legal Department followed its records management policy and did not transfer litigation files closed prior to 2001 (i.e. three years) when it implemented in 2004 is not improper." [Id. at 10.] Defendant contends that "[t]here was no business need or requirement for the Textron Legal Department to retain such closed records. Files were preserved for all pending litigation and, more significantly, there was no duty to preserve evidence for this case because the accident and accompanying lawsuit had not yet occurred." [Id.] Moreover, Defendant relies on the United States Supreme Court's recognition that "`[d]ocument retention policies," which are created in part to keep certain information from getting into the hands of others, including the Government, are common in business . . . It is, of course, not wrongful for a manager to instruct his employees to comply with a valid document retention policy under ordinary circumstances." Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005).
In their response to Defendant's motion, Plaintiffs argue that discovery in this case "has been an uphill battle for Plaintiffs since the first set of discovery was served on Textron on August 23, 2011." [DN 194 at 1.] Plaintiffs contend that Defendant acted wrongfully in 2004 by "destroy[ing] all of the data before 2001." [Id. at 2.] The way Plaintiffs see it,
[DN 228 at 11.] And, according to Plaintiffs, "there is no doubt that the Law Department knew the significance of the records it was destroying." [DN 194 at 2.] In support of this argument, Plaintiffs cite to the deposition testimony of John Rupp, then-associate counsel for Textron, who testified that he "knew that other incidents could be admitted against Textron in civil suits, and could be prejudicial to Textron's defense." [Id. (citing DN 208-1 at 9 (Rupp Deposition).] In his deposition, Rupp testified that he was aware that the issue of prior incidents comes up in products liability cases "probably . . . two-thirds of the time." [DN 208-1 at 9 (Rupp Deposition).]
"Spoliation is `the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.'" Ross v. Am. Red Cross, 567 F. App'x 296, 301-02 (6th Cir. 2014) (quoting United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003)). In 2010, the Sixth Circuit explained the standard for giving an adverse inference instruction on the basis of spoliation as follows:
Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). In adopting this standard, the Sixth Circuit further elaborated:
Id. at 553-54. Rule 37(e) of the Federal Rules of Civil Procedure, which was amended to its current version in 2015, after the Sixth Circuit's decision in Beaven, likewise provides guidance on spoliation measures. Specifically, Rule 37(e) provides:
Fed. R. Civ. P. 37(e). Rule 37(e) permits the imposition of a sanction only if, at a minimum, "electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it." Fed. R. Civ. P. 37(e) (emphasis added). Further, it permits an adverse inference instruction to the jury "only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation." Fed. R. Civ. P. 37(e)(2) (emphasis added).
The Court initially held that Plaintiffs had not made the requisite showing of "intent" to warrant an adverse inference instruction under Rule 37(e), but stated that it would allow Plaintiffs to put on evidence of what they allege is spoliation at trial. However, upon second examination, the Court notes that Rule 37(e) permits the Court to "order measures no greater than necessary to cure the prejudice" only "[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it" and there is a "finding [of] prejudice to another party from loss of the information." Fed. R. Civ. P. 37(e)(1) (emphasis added). Courts have recognized that "[s]uch measures may include, allowing the injured party to comment on or introduce evidence about the lost data at trial." Yoe v. Crescent Sock Co., No. 1:15-CV-3-SKL, 2017 WL 5479932, at *9 (E.D. Tenn. Nov. 14, 2017).
Upon reconsideration, the Court does not find that Plaintiffs have satisfied their burden of showing that the information not transferred to TeamConnect "should have been preserved in the anticipation or conduct of litigation," that Defendant "failed to take reasonable steps to preserve it," and that Plaintiffs suffered prejudice as a result, all of which Rule 37(e)(1) requires before the Court can take any measures to cure the prejudice. See Fed. R. Civ. P. 37(e)(1). As the Court noted above, such measures include allowing Plaintiffs introduce evidence about the loss of the information at trial. See Yoe, 2017 WL 5479932, at *9.
The Court agrees, as Defendant argues, that it had no reason to anticipate the instant litigation when it made the transition to TeamConnect in 2004. Though Plaintiffs emphasize the fact that Rupp acknowledged during his deposition testimony that "incidents deemed substantially similar or reasonably similar can be admitted against" Defendant in civil lawsuits, this is not the same as showing that the information "should have been preserved in the anticipation or conduct of litigation." Fed. R. Civ. P. 37(e). Specifically, Rupp's testimony does not establish that he was aware of an alleged defect, anticipated actual, upcoming litigation on the basis of that alleged defect, and then deleted the information anyway. The Court can envision a scenario in which spoliation is found when there was evidence to suggest that a defendant knew about a specific defect with its product and destroyed records anyway because it anticipated litigation involving that defect, even though a particular injury had not yet occurred. However, the Court does not believe that Rupp's testimony shows this was the case here. Rather, it only shows that he is aware that prior incidents, generally, can be admitted against defendants in products liability litigation. It does not show, however, that Rupp anticipated any litigation on the basis of a certain defect with an E-Z-GO product, such as litigation involving the PC-4X involved in this case, prior to 2004 when Defendant failed to retain pre-2001 documents.
The cases the Court can find regarding spoliation all deal with information which was destroyed after an incident, accident, or injury occurred or after a party had knowledge that litigation was likely going to be initiated in the near future. See, e.g., Byrd v. Alpha All. Ins. Corp., 518 F. App'x 380, 384 (6th Cir. 2013) ("It is undisputed that [Byrd] turned over the oven and caused the glass top range to shatter after he filed a claim with his insurer and was visited by its adjuster, Mr. Palmer . . . [Byrd] does admit that Mr. Palmer told him that [Alpha Alliance] might send someone out to examine the fire damage to his home, particularly to the oven. Thus, at that time, [Byrd] knew, at the very least, that, in the course of investigating his claim, [Alpha Alliance] was interested in a particular piece of evidence (his oven), and that there was a possibility that [Alpha Alliance] might send someone to his residence to examine it. Moreover, [Byrd] himself was aware of the oven's importance in determining the fire's cause, as he had previously observed that the flames were centered on the oven when he entered the kitchen during the fire."); Meany v. Am. Cas. Co. of Reading, Pennsylvania, No. 3:11-CV-401-S, 2014 WL 12725815, at *4 (W.D. Ky. Mar. 24, 2014) ("Altec's General Counsel anticipated almost immediately after the accident that Mr. Meany's injuries would result in litigation, and promptly took very specific action: he directed Mr. Chard to travel to Louisville, investigate the accident, and prepare a report. Yet Altec's General Counsel took no steps to preserve post-accident electronic communications that might be relevant to the future litigation it anticipated until it was served with Mr. Meany's complaint, because it "had no reason to preserve" those emails. Such a contention lacks credibility."); contrast Ross v. Am. Red Cross, 567 F. App'x 296, 303 (6th Cir. 2014) ("Ross asserts that the Red Cross failed to maintain the DRIR `despite knowledge that [] Ross was likely to file an action against [the Red Cross],' but Ross does not point to evidence demonstrating the Red Cross's awareness of potential litigation prior to March 2009. The district court did not clearly err by crediting the Red Cross's explanation that it inadvertently lost the DRIR prior to learning of Ross's potential lawsuit."); Perryman v. Postmaster Gen., 475 F. App'x 585, 588-89 (6th Cir. 2012) ("According to Gebler, by the time he received the notice [to preserve evidence] he had already discarded his notes from Perryman's interview. Although Perryman asserts that Gebler should have foreseen the need to preserve the notes based on Perryman's emails questioning her non-selection, `if there was no notice of pending litigation, the destruction of evidence does not point to consciousness of a weak case and intentional destruction.' It is not disputed that Gebler was not aware of pending litigation or even a pending investigation at the time of Perryman's interview, nor in the days afterward when Perryman sent the emails.") (internal citations omitted).
Plaintiffs argue that "Textron alleges its duty [to preserve] only arose when this specific action was filed. However, this duty is broader than Textron would have the Court believe." [DN 194 at 6.] In support of this argument, Plaintiffs quote case law stating that "[i]t is beyond question that a party to civil litigation has a duty to preserve relevant information . . . when that party `has notice that the evidence is relevant to litigation or . . . should have known that the evidence may be relevant to future litigation.'" [Id. (quoting John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)). According to Plaintiffs, then, the phrase "future litigation" means any litigation that could arise at any time in the future, even 7 years in the future, when the incident which led to Jordan Jackson's injuries and death occurred. The Court disagrees. Plaintiffs have not cited to any case in which a court found the duty to preserve information to have existed indefinitely due to the possibility of future products liability litigation or even as far back as 7 years before an injury occurred, as in this case.
Plaintiffs also argue that the fact that Textron has not deleted any data pursuant to its policy since transferring to TeamConnect in 2004 "should preclude Textron from relying upon such policy as a shield to avoid the admission of relevant evidence." [DN 228 at 4.] The Court does not find this to be particularly compelling, however, in light of Sandra Jack's explanation that the reason Defendant has not deleted information from TeamConnect since making the transfer to it in 2004 is because:
[DN 228-2 at 29 (Sandra Jack Depo., p. 106-107) (emphasis added).] Moreover, it seems to the Court that the fact that Defendant has not deleted any incidents from after 2001 from the TeamConnect database since transferring to it actually demonstrates that Defendant did not intend to spoliate evidence. Indeed, 7 of the 10 prior incidents the Court found admissible in this case are post-2001 accidents Defendant retained records for.
Nor does the Court find that Plaintiffs have suffered any ascertainable prejudice, which Rule 37(e) also requires before the Court may impose any remedial measures. According to Defendant:
[DN 223 at 7-8.] Plaintiffs have not responded to or refuted this argument. Indeed, 3 of the prior incidents the Court has found admissible as evidence in this case include incidents from before 2001.
In sum, the Court does not believe the duty to preserve documents extends as broadly and as far into the future as Plaintiffs argue, and Plaintiffs cite no case to suggest as much. Nor does the Court finds that Plaintiffs have made the requisite showing of prejudice. Accordingly, the Court agrees that, under the standards set by Rule 37(e)(1), Plaintiffs have not shown that evidence of alleged spoliation is admissible at trial.
Plaintiffs make a second argument as to the admissibility of Defendant's failure to preserve incident reports from before 2001 which they focus on strongly in their response to Defendant's motion to reconsider. Specifically, Plaintiffs contend that Defendant's actions in 2004 when it transferred to TeamConnect "constitute[] evidence of Textron's negligence in failing to have an adequate safety program and failing to properly monitor post-sale activities of its products." [DN 228 at 1.] For their negligence claim in their complaint, Plaintiffs allege that Defendant "negligently, carelessly, recklessly, and grossly negligently designed, manufactured, tested, produced, marketed, distributed, and sold the E-Z-GO vehicle, and such negligence, carelessness, recklessness, and gross negligence was a substantial factor in causing the injuries and damages alleged herein." [DN 1-2 at 5.] According to Plaintiffs, their allegation that Defendant got rid of records of incidents from before 2001 is probative evidence on the issue of whether Defendant was negligent in this regard.
In support of this argument, Plaintiffs state:
[DN 228 at 7 (quoting DN 118-6 at 10 (Stern Report)).] According to Stern, "
The Court disagrees with Plaintiffs, however, that the above-cited materials from Stern and Fisher are probative of Plaintiffs' contention that Defendant breached a duty to adequately monitor post-sale activities or a duty to have an adequate safety program. Plaintiffs do not explain how Defendant's failure to retain documents shows that they failed to abide by the standards identified by Stern, including having a mechanism for reporting safety concerns, a process for following up on those concerns, a process to become proactively aware of those concerns, a process to ensure compliance with post-sale reporting requirements, or a process to address safety-related issues proactively and reactively. Failure to retain documents older than three years does not demonstrate a failure to follow the above guidelines.
But perhaps more importantly, the Court does not see how the purge of pre-2001 records is probative of Plaintiffs' claim that Defendant "negligently, carelessly, recklessly, and grossly negligently designed, manufactured, tested, produced, marketed, distributed, and sold the E-Z-GO vehicle, and such negligence, carelessness, recklessness, and gross negligence was a substantial factor in causing the injuries and damages alleged herein." [DN 1-2 at 5.] Plaintiffs do not explain how Defendant's failure to retain pre-2001 incident records constitutes negligence in designing, manufacturing, testing, producing, marketing, distributing, or selling the PC-4X such that it "was a substantial factor in causing the[ir] injures and damages." [See id.] Plaintiffs do not cite a case, and the Court cannot find one, in which a negligence theory of products liability was alleged on the basis of a company's failure to retain incident records. Rather, in the Court's view, this is simply a reiteration of Plaintiffs' spoliation argument. Finding this evidence irrelevant to Plaintiffs' negligence claim as it is presented in their complaint, the Court agrees that it is inadmissible.
For the reasons explained in detail in this Memorandum Opinion, the Court adheres to its Order
