A generation ago, if you wanted to figure out how your Pontiac Firebird or Ford Fiesta worked, you could take the thing apart in your garage and put it back together (if you were lucky) in full working order. Today, to really understand what makes a modern engine rev, you’ll also need a degree in computer science. Today’s vehicles are increasingly computerized and connected, capable of generating and storing information on everything from your driving speed to your tailpipe emissions.
They're part of the ever growing world of electronic data, with smart cars standing alongside wifi-enabled medical devices, voice-activated speakers, and apartment-mapping vacuums, as just one of many sources of new data—data that, of course, is increasingly ending up in court rooms. And that means that altering or destroying that data when litigation is anticipated could result in sanctions, even if that destruction is something like selling a car.
Finding ESI in Unexpected Places—and Cases
We were recently reminded of how widely eDiscovery is permeating the courts in an interview with Magistrate Judge David J. Waxse, of the U.S. District Court for the District of Kansas. (That interview, along with interviews with nearly a dozen other judges, was recently anthologized in “Views From the Bench: Leading Federal Judges in Conversation on eDiscovery and More,” available for download here.) In the interview, Judge Waxse discusses the “expanding situations where there’s electronically stored information” at play and the difficulty attorneys face when keeping track of the ever-growing universe of ESI. The judge keyed in on one case in particular. It wasn’t an intellectual property dispute or an employment discrimination claim; it was a car accident.
“I tried a case a few years ago that involved a trailer truck running into a pickup out in western Kansas,” Judge Waxse explained. “The issue was whether the driver had been driving too long and driving too fast. They tried the case simply with the testimony of the two drivers and the highway patrolmen.” Even in an MVA case, ESI could have been an issue, had the attorneys been aware of it:
When they finished I said, “Why didn't you get the ESI in this case?” They said, “What are you talking about? ESI? It’s a truck-wreck case.”
Well as I understand it—it was a national trucking company—they equip all of their tractors with all kinds of electronic sensors keeping track of the time, the speed, the location. This factual dispute about how fast the guy was going and how long he’d been driving, it was probably right there in the ESI if they had just gotten it. They hadn’t even thought about it.
That got us wondering. How frequently is “unexpected ESI” working its way into day-to-day legal disputes like MVA suits, custody battles, and the like, areas not typically known for heavy eDiscovery? And how often is such ESI leading to discovery disputes? (By “unexpected ESI” we mean electronic evidence outside the typical emails and computer documents, the kind of evidence that might be easy to overlook if you’re not familiar with it.)
Certainly, as Judge Waxse points out, ESI can be essential in such cases. And as more and more of our world is becoming computerized, that automobile ESI is proliferating quickly. Over the past decades, high-tech cars and trucks have evolved into computers on wheels, with cars manufacturers like Tesla rolling out “autopilot” technology (downloaded straight to the vehicle) that’s bringing everyday drivers just a hair away from autonomous, self-driving cars. That technology, which creates detailed electronic records every time you cruise down the street, is already playing important roles in MVA investigations.
But it’s not just the cutting-edge vehicles rolling out of Silicon Valley that are tricked out with microchips and electronic sensors. Judge Waxse’s dispute is a good example of how far ESI has traveled, as is the recent case out of the Northern District of Alabama, Barry v. Big M Transport, Inc.
Big M Transport and Big Rig Spoliation
The Big M Transport case stems from a 2015 collision between a semi-truck and three passenger vehicles. In March of 2015, David and Vanessia Barry were driving from Alabama to Georgia when they experienced a side-to-side collision with a tractor-trailer. David Barry, who was driving, pulled to the shoulder of the road. But, because the Barrys were passing through a construction zone, the shoulder was being used as the right traffic lane. As they were pulled over, another semi-truck, this one operated by Big M, collided with the Barrys’ vehicle and two others, sending Vanessia Barry, who was standing in front of the car, “flying through the air.”
911 was called, pictures were taken, state troopers investigated, and eventually the Big M truck was towed away from the scene and driven back the company’s headquarters in Mississippi. Less than a month later, the Barrys’ attorney sent Big M a “letter of preservation,” instructing the company to preserve the truck’s “Electronic Data/Electronic Control Module Vehicle Data Recorder/Black Box and its data.” An electronic control module, or ECM, is the on-board computer for a vehicle, one which can monitor and control the vehicle’s electrical systems—and data from the ECM can prove telling when trying to make sense of an accident, including potential information about speed, brake usage, deceleration and more.
So, how’d the ECM litigation hold go?
Not so well.
Though Big M’s corporate policy was to “get the ECM data” after a severe collision, according to a company representative, that wasn’t what happened here. By the time the Barrys’ preservation letter had been received, the car had already undergone repairs. And soon after the letter was delivered, the truck was sold, the culmination of a deal entered into before the collision.
There was even disagreement between Big M and its own experts as to whether ECM data preservation was possible. According to the company’s representative, the ECM information would have been lost, overridden by “something as simple as moving the truck.” According to Big M's motor carrier expert, however, “towing the truck with the engine off would not overwrite [ECM] data.”
With the truck sold and the ECM data lost, the Barrys moved for spoliation sanctions, requesting either a default judgement or an order establishing “the speed [at] which [Big M’s driver] was driving and the maneuvers he made in the light most favorable” to the couple.
Spoliation, Yes, But What Sanction Fits?
Chief Magistrate Judge John E. Ott had no trouble finding that Big M was “guilty of spoliation.” That spoliation also prejudiced the Barrys, Judge Ott wrote, “depriving the Barrys of the best and most accurate evidence of the truck’s speed in the moments prior to the collision.”
Nonetheless, Judge Ott declined to impose the severe sanctions requested by the couple. First, Judge Ott was “not convinced that Big M acted with the intent to deprive the Barrys of the use of the ECM data.” Big M’s understanding, even if mistaken, that the data would already be overwritten was a plausible enough excuse for its lack of preservation. That was bolsterd by Big M's belief that the Barrys were responsible for the accident, and thus less likely to sue. “Under these circumstances,” the court found, “it was not unreasonable for Big M to complete the sale and transfer of the truck... without first endeavoring to have the ECM data downloaded.”
Even if the spoliation was done with the intent to deprive, the court explained, the loss had not prejudiced the Barrys enough to justify the most severe sanctions. The couple had not shown, the court wrote, that “the loss of the ECM data has impaired their ability to prove their case to such a degree that the only appropriate sanction is to enter a judgment against the Defendants on negligence or to judicially establish the facts in the light most favorable to the Barrys.” The Barrys’ accident expert, the court noted, was still able to reconstruct the accident “to a sufficient level of certainty,” without the truck’s ESI.
Finally, the court turned to state law for additional guidance. In Alabama, state courts look to five factors to judge the appropriateness of spoliation sanctions. These are:
These factors, too, weighed against severe sanctions. While Big M was “not blameless,” the spoliation “was not so important that its loss has crippled the Barrys’ ability to prove their case”.
Of course, Big M did not escape consequences entirely. The loss of the ECM data was spoliation, quite clearly, and it certainly prejudiced the plaintiffs. As an alternative to the Barrys’ requested sanctions, the court crafted a slightly less extreme sanction. The court, Judge Ott explained, “intends to tell the jury that the ECM data was not preserved and will allow the parties to present evidence and argument at trial regarding Big M’s failure to preserve the data.”
The Big M ruling thus stands as an important reminder not just of the factors that go into crafting an appropriate spoliation sanction, but of the increasing possibility of such sanctions in ever expanding areas of the law—as attorneys become increasingly aware of the existence and value of ESI in unexpected places.