Does a railway company’s ineffective preservation of black box data after an accident warrant the sanction of an inverse inference instruction to the jury?

How Can a Judge Infer Intentional Deprivation of Electronic Information and Thus Impose Severe Spoliation Sanctions?

Author: Tracy F. Buffer
Case Citation: Moody v. CSX Transp., Inc., No. 07-CV-6398P, 2017 U.S. Dist. LEXIS 154449 (W.D.N.Y. Sep. 21, 2017).
Employee/Personnel/Employer implicated: Railway Company
eLesson Learned: In order to prevent the imposition of harsh sanctions, parties should, as soon as they are aware that litigation is impending, ensure that any data that is relevant is readable and also stored on multiple interfaces. Waiting more time to attempt to access data could allow the court to infer that any deprivation was intentional.
Tweet This: A railway company did not cover its tracks and was subject to spoliation sanctions based on actions relating to black box recordings.

In this dispute, Plaintiff sued a railway company (“Defendant”) for personal injuries resulting from when she was hit by a train and dragged for twenty feet in 2006. Her injuries included an above-the-knee amputation of her left leg and the loss of toes on her right leg.

Among other things, Plaintiff moved for spoliation sanctions based on Defendant’s inability to produce information from the train’s event recorder, which is typically called a “black box”.  The event recorder records all movements from the train including acceleration, speed, braking, and the use of the horn or bell. Normally, the data is transferred from the recorder to a central data vault.

When Plaintiff served discovery demands in June of 2009, she asked for, among other information, the printouts from the event recorder of the train that hit her. Defendant responded by stating that the data from the event recorder was downloaded but not in a readable format.

Plaintiff then served a supplemental notice for Defendant to produce the download as well as the information and software necessary to interpret the data. Defendant did produce the unreadable download along with a letter stating that an engineer only downloaded two of the three files that were necessary to read the information. When this was discovered, Defendant stated, the company asked the engineer to check his laptop for the file. However, the letter explained, the laptop had crashed and had been recycled or destroyed.

Plaintiff asserted that Defendant had spoliated the data from the event recorder and requested that the court strike Defendant’s answer or provide an adverse inference instruction to the jury. Plaintiff claimed that Defendant had a duty to preserve the event recorder data in the central data vault and on the laptop as Defendant was aware that it contained information that was central to the dispute.

She also claimed that Defendant did not take reasonable steps to ensure the data was preserved and that she was prejudiced by the destruction of the data because it would have resolved the issue of whether the train’s horn sounded before it started moving.

Defendant argued that it took reasonable steps to preserve the data, that Plaintiff was not prejudiced by the loss of the data, and that it did not act with any culpability. Defendant claimed it acted reasonably when it sent the engineer to receive the data right after the accident and then sent it to the data vault. It claimed that any loss of data was due to inadvertent human error. Defendant claimed that even if the court were to determine that some sanction is appropriate, an adverse inference instruction is not because its errors were a result of simple negligence and not bad faith, intentional conduct.

The court ultimately imposed an adverse inference instruction to the jury which, under Rule 37(e)(2) of the Federal Rules of Civil Procedure, allows the jury to infer that the lost information “was in fact unfavorable to the party that lost it.”

The court noted that based on Rule 37, Defendant did have a duty to preserve the data from the event recorder as it was relevant information to an impending lawsuit. The court also found that Defendant did not take reasonable steps to preserve the data. Relating to this finding, the court was not convinced that Defendant had not attempted to access the data from 2006 (the time of the incident) to 2010 (the time of the discovery request) given that it would establish relevant and material facts. The court also found Defendant’s explanation about the laptop with the information incredulous and its actions in destroying or recycling the laptop unreasonable.

The court found, of course, the data was not reproducible as the information from the event recorder could not be replicated by any other means. Also, the court found that there was prejudice to Plaintiff as it was plausible that the data from the recorder would have supported Plaintiff’s position. It was not necessary that she prove that the recording data would have been favorable to her position.

The most important part of the opinion focused on whether or not Defendant engaged in intentional deprivation, which would warrant more severe sanctions against it. The court did, in fact, find that Defendant acted with intent to deprive Plaintiff of the data from the event recorder.

The court inferred this intention from the fact that Defendant knew it had a duty to preserve the data and allowed the original data on the event recorder to be overwritten and destroyed on the laptop. In addition, Defendant’s failure, from 2006-2010 to ensure that the data was properly preserved allowed for the inference of intentional deprivation.

As the court found that Defendant intentionally deprived Plaintiff of the data from the event recorder, it imposed the severe sanction of an adverse inference instruction, therefore allowing the jury to infer that the data on the event recorder was unfavorable to defendant.

The issues here related to the fact that the data that was present was unreadable as well as the destruction of the laptop. In order to prevent similar issued from arising in the future, parties should, as soon as they are aware that litigation is impending, ensure that any data that is relevant is readable and also stored on multiple interfaces. Waiting more time to attempt to access data could allow the court to infer that any deprivation was intentional. Once this intention is found, harsh sanctions can be imposed under Rule 37 which could be extremely detrimental to that party’s case. Learn from this railway company’s mistake and cover your “tracks”.

Tracy F. Buffer will receive her J.D. from Seton Hall University School of Law in 2018. She received her B.A. from Rutgers University in New Brunswick, New Jersey in 2015.  After graduation from law school, Tracy plans to practice corporate law.

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