Always Maintain Physical and Electronic Evidence for Trial

Make Sure to Salvage Your Salvage

Author: Michael Mondelli III
Case Citation: Below v. Yokohama Tire Corp., No. 15-cv-529-wmc, 2017 U.S. Dist. LEXIS 27280 (W.D. Wis. Feb. 27, 2017)
Employee/Personnel/Employer Implicated: Plaintiffs or Plaintiffs’ agents/Plaintiffs’ Counsel
eLesson Learned: Attorneys should always ensure that clients are aware of the duty to preserve evidence in the wake of trial, and that attorneys must ensure, to the best of their abilities, that they keep track of the evidence.
Tweet This: Make sure that you and your counsel work together and understand what evidence must be preserved and how it should be preserved.

In this civil action, plaintiffs allege that defendants, including Yokohama Tire Manufacturing Virginia, LLC, are liable for money damages arising out of a rollover incident resulting from a tire tread separating from a tire on plaintiff Joshua J. Below’s vehicle. Defendants filed a motion for relief due to spoliation of evidence due to the destruction of Below’s pickup truck at a salvage yard before the Plaintiffs filed this lawsuit. Defendants argue that the destruction of the truck impaired their ability to defend this lawsuit because they were unable to evaluate, inter alia, the suspension and steering systems, the seatbelt, the electronic data recorder, and the other three tires. Defendants base their motion on the assertion that Plaintiffs or their agents sold Below’s pickup truck to a salvage yard with the knowledge that it would be destroyed after inspecting it, without taking photographs and preserving the failed tire. On these grounds, Defendants move for a spoliation instruction.

A spoliation instruction is only obtainable if the proponent shows an intentional act or bad faith by the party in possession of the destroyed evidence. See Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013); Spesco, Inc. v. Gen. Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983). Defendants assert that: (1) Below or his agent transferred the truck’s title to the salvage yard; (2) plaintiffs did nothing to preserve the truck, despite having located it and inspected it themselves; and (3) plaintiffs failed to alert Yokohama that they intended to file a lawsuit against them, much less advise where the vehicle was being stored. Based on these actions, as well as the fact that Below’s received $22,000 in insurance proceeds from the sale of the truck, Defendants argue bad faith can be inferred on part of the Plaintiffs.

Divergent from the assertions of the Defendants, Plaintiffs claim that Below’s mother did not contact plaintiffs’ counsel the day after the accident. Rather, Plaintiff’s counsel was retained roughly six weeks later. Furthermore, Plaintiffs’ counsel represents that on the day counsel was retained, one of their investigators discovered that some components had already been removed from the truck, presumably by the salvage yard. Also, that day, Plaintiffs assert that the salvage yard agreed to the investigator’s request to preserve the truck. Several months later, another of its investigators, followed-up with the salvage yard to ask them to continue to preserve the truck and to notify him about any storage charges. Despite these efforts, Plaintiffs’ counsel later discovered in fall of 2015 that the truck had been destroyed nearly a year earlier.

However, there is no explanation for how the Plaintiffs ended up with the allegedly defective tire, without preserving the other three, and why other steps were not taken to preserve similar evidence, including possible electronic evidence that must be preserved under Fed. R. Civ. P. 37(e). Possibly the most important question is why plaintiffs waited another two full years after the accident without notifying Yokohama of the availability of this piece of key evidence, despite knowing that it was the focus of plaintiffs’ liability claims within months of the accident itself. These questions are all the more troubling considering Plaintiffs were represented by a sophisticated personal injury law firm, who were fully aware of their duty to maintain evidence relevant to likely litigation, to provide notice of a possible claim, and a notice of “the existence of evidence relevant to that claim.” Am. Family Mut. Ins. Co. v. Golke, 2009 WI 81, 319 Wis. 2d 397, 768 N.W.2d 729, 732 (2009).

Based on the record, Plaintiffs should have taken further steps to ensure that the key evidence discoverable from the truck was preserved. According to the court, failure to do so fell somewhere between negligence and gross negligence, but short of bad faith. Notwithstanding this, the court granted to Defendants’ motion to the extent that (1) defendants may explore how information from an inspection of Below’s truck could have affected the experts’ opinions at trial; and (2) plaintiffs may not argue that defendants or their experts failed to explore or prove something is prevented from doing so by plaintiffs’ negligence in preserving evidence. 

Michael Mondelli III received a B.A. in Political Science and Philosophy from Drew University in 2015. He will receive his J.D. from Seton Hall University School of Law in 2018. Present, Michael interns for the U.S. Trustee’s Office. After Graduation, Michael will clerk for a civil judge in the Superior Court of New Jersey.

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