United States District Court, D. Nebraska
INDERJEET BASRA, individually and as Personal Representative for the ESTATE OF ATINDERPAL SINGH; DILSHAAN S. REHAL, by and through his next friend, INDERJEET BASRA, Plaintiffs,
ECKLUND LOGISTICS, INC., Defendant.
Gossett, III, United States Magistrate Judge
matter is before the court on Plaintiffs' Motion for
Sanctions and Second Motion to Compel Discovery (Filing
No. 69). The court will grant the motion, in part, and
in part deny the motion.
are the surviving spouse and child of Atinderpal Singh, who
perished after a trailer-tractor accident near York,
Nebraska, on August 8, 2012, wherein Singh's
tractor-trailer collided with a tractor-trailer driven by
Freddy Galloway, an employee of Defendant. Plaintiffs
initially filed suit against Defendant and others in
California state court in 2014. (Filing No. 81-6).
After the California court determined Nebraska provided the
more suitable forum, Plaintiffs filed this action against
Defendant on February 17, 2016, for negligence, loss of
consortium, and punitive damages. (Filing No. 1).
current discovery dispute concerns Plaintiffs' continuing
complaints regarding Defendant's production of documents
and failure to verify and sign that its interrogatory answers
were made under oath. Plaintiffs allege that Defendant
spoliated evidence by intentionally destroying or failing to
preserve relevant documents in anticipation of litigation,
and request sanctions in the form of an adverse inference
instruction to the jury that the destroyed evidence would
have favored Plaintiffs' case and would have been
unfavorable to Defendant. Plaintiffs also request
attorney's fees and costs and an order compelling
Defendant to provide a properly signed verification for each
set of its interrogatory answers and to produce certain
documents in compliance with this court's previous Order
(Filing No. 53).
response, Defendant denies it spoliated any evidence, and
claims the documents alleged to have been intentionally
destroyed never existed, were available to Plaintiffs from
other sources, or were destroyed in the ordinary course of
business. Defendant also asserts Plaintiffs' motion is
now partially moot because Defendant has since supplemented
its discovery responses and provided a signed verification to
address Plaintiffs' issues. (Filing No. 77 at p.
2). Plaintiffs acknowledge Defendant's
supplementation; however, Plaintiffs argue that the
supplementation occurred after the parties' agreed upon
(and court ordered) deadline of January 10, 2017, and after
Plaintiffs filed this motion. (Filing No. 80 at pp.
16-18). Plaintiffs also maintain that Defendant's
recently provided verification (Filing No. 78-1 at p.
3) is insufficient because it fails to specify which of
the three sets of interrogatory responses it covers.
(Filing No. 80 at p. 18).
assert that Defendant had a duty to preserve all relevant and
discoverable materials beginning on August 8, 2012, the date
of the accident, because at that time Defendant knew or
should have known of possible future litigation. In
particular, Plaintiffs contend relevant evidence that was not
preserved by Defendant includes Galloway's driver logs,
Qualcomm data (the system used at the time of the accident to
track of Defendant's truck's mileage and location),
PeopleNet server data (the system that replaced Qualcomm),
Defendant's accident report and accident register, the
version of the driver's handbook provided to Galloway,
and Galloway's driver qualification files. Plaintiffs
request an adverse inference jury instruction due to
Defendant's alleged spoliation of the above evidence.
law applies to the imposition of sanctions for the spoliation
of evidence.” Sherman v. Rinchem Co., 687 F.3d
996, 1006 (8th Cir. 2012). When a party alleges spoliation of
evidence, the court “is required to make two findings
before an adverse inference instruction is warranted: (1)
‘there must be a finding of intentional destruction
indicating a desire to suppress the truth, ' and (2)
‘[t]here must be a finding of prejudice to the opposing
party.'” Hallmark Cards, Inc. v. Murley,
703 F.3d 456, 460 (8th Cir. 2013) (quoting Stevenson v.
Union Pac. R. Co., 354 F.3d 739, 746, 748 (8th Cir.
2004)). “The ultimate focus for imposing sanctions for
spoliation of evidence is the intentional destruction of
evidence indicating a desire to suppress the truth, not the
prospect of litigation.” Greyhound Lines, Inc. v.
Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) (quoting
Morris v. Union Pac. R.R., 373 F.3d 896, 901 (8th
Cir. 2004)). If spoliation occurs, “[a] court's
inherent power includes the discretionary ability to fashion
an appropriate sanction for conduct which abuses the judicial
process.” Sherman v. Rinchem Co., 687 F.3d
996, 1006 (8th Cir. 2012).
reviewing the evidence submitted by the parties, the court
finds Plaintiffs have not established Defendant intentionally
destroyed evidence with a desire to suppress the truth.
Defendant's evidence indicates the information requested
by Plaintiffs did not exist, was obtained by Plaintiffs
through other sources, or was purged by the company per DOT
respect to Plaintiffs' request for Defendant's
accident report and accident register, deposition testimony
from Defendant's president, Kirk Ecklund, indicates that
Defendant did not conduct its own investigation into the
accident and instead the company relied on the investigations
of law enforcement and their insurer. (Filing No. 78-5 at
p. 102, 106). Additionally, according to deposition
testimony from Dean Briesmeister (Defendant's safety
director at the time of the accident), Defendant's
accident register would have included basic information about
the accident, including the name of the driver involved, the
fact that there was a death, the fact that Galloway was hurt,
when and where the accident occurred, and no information
regarding fault -- all information Plaintiffs already have
from other sources. (Filing No. 78-7 at p. 42).
respect to the unavailable Qualcomm data, a representative of
Defendant testified that Qualcomm would have had no
information in it from the date of the accident regarding
Galloway's driving times because Galloway was
“computer illiterate” and did not enter his logs
into Qualcomm. PeopleNet also would not have information in
it from the date of the accident because Defendant did not
save any of the information from the Qualcomm server when
Defendant transitioned from Qualcomm to PeopleNet
approximately three years ago. (Filing No. 78-5 at pp.
13-15). More importantly, Galloway's physical
driving logs for the period of time leading up to and
including the accident were taken by law enforcement and have
been produced to Plaintiffs during discovery. Counsel was
able to question Kirk Ecklund, Galloway, and Briesemeister
about Galloway's driving logs from the time of the
accident. (Filing No. 78-5 at p. 96, Filing No. 78-7 at
pp. 87-88; Filing No. 78-8).
also seek Galloway's driver qualification file. According
to the deposition testimony of Briesemeister, Galloway's
driver qualification file would have included his physical, a
road test motor vehicle record, Social Security card, job
application, driver's license, medical card, recap of his
hours for the week before his hire, and an acknowledgement of
receipt of a copy of the DOT Green Book. (Filing No. 78-7
at p. 21-23, 84). Briesemeister testified the file is
kept in the case of a DOT audit. (Filing No. 78-7 at p.
21). Lana Ecklund testified Galloway's driver
qualification file was destroyed as permitted by DOT
regulations after Galloway was no longer an active driver or
employee. (Filing No. 78-6 at p. 64). Plaintiffs
have been able to discover some of the relevant information
that would have been contained in the driver qualification
file, including questioning Galloway about the driver
qualification test. (Filing No. 78-8 at pp. 24-27).
Defendant produced its current driver's handbook to
Plaintiffs, as Defendant did not have the 2012 version of the
handbook that Galloway would have had at the time of the
accident. However, counsel for Plaintiffs was able to