United States District Court, D. New Mexico
DEVI MARIA SCHMIDT, as Limited Guardian of JOHN CARRILLO, an incapacitated person, KAREN CARRILLO, JOHN CARRILLO, JR., and ASHLEY CARRILLO, Plaintiffs,
ANTHONY SHIFFLETT, NEW BERN TRANSPORT CORPORATION, a foreign profit corporation, PEPSICO, INC., a foreign profit corporation, and ACE AMERICAN INSURANCE COMPANY, Defendants.
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Plaintiff's Opposed
Motion for Sanctions for Defendants' Failure to Preserve
Mobile Phone Data (Doc. 47), filed March 14,
2019. Pursuant to 28 U.S.C. § 636(c) and
Fed.R.Civ.P. 73(b), the parties have consented to have me
serve as the presiding judge and enter final judgment.
See Docs. 3, 6, 7.
case arises from a January 9, 2018 collision between
Defendant Anthony Shifflett (“Defendant
Shifflett”) and Plaintiff John Carrillo. Plaintiff John
Carrillo was installing striping on U.S. Highway 285, and
Defendant Shifflett was driving a tractor trailer northbound
on the same highway, when Defendant Shifflett's vehicle
collided with Plaintiff John Carrillo, causing him to sustain
severe injuries. Following the collision, Plaintiffs filed
suit on June 5, 2018, in the First Judicial District Court of
Santa Fe County, State of New Mexico, alleging negligence by
Defendants. Doc. 4, Ex. A. Plaintiffs now move for
sanctions under Federal Rule of Civil Procedure 37(e),
arguing that Defendants intentionally destroyed Defendant
Shifflett's personal mobile device and failed to preserve
the mobile phone data for the same device from the day of the
collision. Doc. 47 at 1.
is the ‘destruction or significant alteration of
evidence, or the failure to preserve property for
another's use as evidence in pending or reasonably
foreseeable litigation.'” Martinez v.
Salazar, Civ. No. 14-0534 KG/WPL, 2017 WL 4271246, at *2
(D.N.M. Jan. 26, 2017) (quoting Linnebur v. United Tel.
Ass'n, Inc., No. 10-1379 RDR, 2012 WL 2370110, at *1
(D. Kan. June 21, 2012)). In order to prevent spoliation,
litigants are under a duty to preserve evidence when they
know, or should know, that it may be relevant to future
litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D.
212, 216 (S.D.N.Y. 2003).
sanctions are proper when “(1) a party has a duty to
preserve evidence because it knew or should have known that
litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence.”
Burlington N. & Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). Further,
Federal Rule of Civil Procedure 37(e) provides:
If 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 it cannot be restored or replaced through
additional discovery, the court: (1) upon finding prejudice
to another party from loss of the information, may order
measures no greater than necessary to cure the prejudice.
Fed. R. Civ. P. 37(e). An aggrieved party must demonstrate
bad faith to warrant an adverse inference sanction.
Aramburu v. The Boeing Co., 112 F.3d 1398, 1407
(10th Cir. 1997).
upon reasonably anticipating litigation, a party “must
suspend its routine document retention/destruction policy and
put in place a ‘litigation hold' to ensure the
preservation of relevant documents” and other tangible
evidence. Browder v. City of Albuquerque, No. CIV
13-0599 RB/KBM, 2016 WL 3397659, at *4 (D.N.M. May 9, 2016).
Litigation holds are required for both tangible evidence and
electronic data. See Cache La Poudre Feeds, LLC v. Land
O'Lakes, Inc., 244 F.R.D. 614, 620, 637 (D. Colo.
2007) (imposing spoliation sanctions for destruction of
January 9, 2018, Plaintiff John Carrillo was installing
striping along northbound U.S. Highway 285, outside the City
of Artesia in Eddy County, New Mexico. At the same time,
Defendant Shifflett was driving a tractor trailer on behalf
of Defendant New Bern, and allegedly Defendant PepsiCo,
northbound on the same highway. A mounted attenuator trailer
was positioned behind Plaintiff John Carrillo's work
truck, and he was working nearby on the passenger side of his
vehicle. Defendant Shifflett collided into the rear of the
mounted attenuator trailer and work truck which then struck
Plaintiff John Carrillo causing serious injuries to him.
Shifflett reported that, just prior to the collision, he was
distracted by the instrument gauges in his tractor, which he
claims were malfunctioning. In his written statement, he
My truck was sounding weird so I reduced my speed and
starting [sic] checking my gauges. I seen trucks in front of
me, but didn't see any warning lights. I look down again
to check my gauges, and when I look up I realized I was about
to make impact with another veh[icle].
Doc. 47, Ex. 1, at 1. Similarly, Defendant Shifflett
testified during his deposition: “I looked down at my
gauges and then I looked up. I seen a truck in front of me
roughly 100 yards, and I looked down at my gauges again and
then when I looked up again it was impact.” Doc.
47, Ex. 2 at 138:1-5.
undisputed that Defendant Shifflett denied using his personal
or business cellphone at the time of the accident. Chris
Gonzales, Associate Manager of Bottling Group, LLC, testified
that he did not ask Defendant Shifflett to turn over his
personal cell phone following the collision, explaining:
“That's where I decided not to go to try and
request a personal device. Asked him and hoped that he was
going to be full, fair and transparent.” Doc.
47, Ex. ...