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Schmidt v. Shifflett

United States District Court, D. New Mexico

October 28, 2019

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.


         THIS 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.

         This 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.

         I. Legal Standard

         “Spoliation 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).

         Spoliation 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).

         Generally, 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 electronic media).

         II. Background

         On 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, [1] 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.

         Defendant 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 explained:

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.

         It is 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. ...

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