Is “Irresponsible and Shiftless” Behavior Sufficient Evidence of Intent Under Amended Rule 37(e)?

O’Berry v. Turner, Nos. 7:15-CV-00064-HL and 7:15-CV-00075-HL, 2016 U.S. Dist. LEXIS 55714, (M.D. Ga. Apr. 27, 2016)

In a surprising turn, the court found that two defendants made such a “minimal” effort to preserve relevant electronically stored information (ESI) that they must have intended to deprive the plaintiffs of that information and saddled them with an adverse inference instruction.

This case arose from a June 21, 2013 car accident, in which one plaintiff, James O’Berry, was driving a vehicle that was hit by a tractor-trailer; the other plaintiff, Rodney Holmes, was O’Berry’s passenger. The impact forced their car off the road, where it collided with a light pole. O’Berry and Holmes sued the driver of the truck; his employers, ADM Trucking, Inc. and Archer Daniels Midland Company (collectively, “ADM”); and their insurer.

On August 18, 2013, O’Berry’s counsel sent a spoliation letter to ADM requesting that it “preserve driver logs, information gathered from the truck, and information about the truck itself.” ADM acknowledged receipt and responded that it would take “all measures necessary” to preserve evidence. Despite this assurance and his “numerous attempts” to obtain evidence, O’Berry never received any logs or ESI. Eventually, in January 2016, O’Berry alerted the court to the discovery dispute. ADM responded that “the desired information had been ‘inadvertently destroyed.’” O’Berry and Holmes moved for sanctions.

At the hearing, Tracy Causey, a former loss control manager at ADM, testified that “when an accident occurred, his job was to print copies of the driver’s log and any [tracking] information” from the PeopleNet data tracking system. He then stored that single printed copy in a manila folder in his office. Causey said that he knew of no ADM policy requiring additional preservation measures, such as downloading the electronic file or sending a preservation request to PeopleNet. As for this specific manila folder, Causey was unable to explain why it was missing from his office; he said only that between November 2013 and January 2014, the contents of his office were packed up, moved by a maintenance crew into a new office, and then unpacked. Causey testified that he did not receive a request for the folder until January 2016.

Although the actual missing information was a printed copy in a manila folder, the court treated this dispute as a failure to preserve ESI under Federal Rule of Civil Procedure 37(e). The court found that no later than August 18, 2013, ADM had a duty to preserve ESI, that it failed to take reasonable steps to preserve that information, and that ESI was irretrievably lost as a result. The court did not address whether any ESI was still available on the PeopleNet system nearly 60 days after the accident.

The court first noted that Rule 37(e)(2) allows for “severe penalties” where evidence is intentionally lost “to deprive the opposing party of its use in litigation.” This subsection “does not require a finding that the opposing party was prejudiced” by the loss.

Despite no clear evidence of purposeful action, the court found that ADM “acted with the intent to deprive Plaintiffs of using the driver’s log and additional PeopleNet information in litigation.” The court observed that “it is simply irresponsible to print a single paper copy of information which one has a duty to preserve.” Therefore, the court concluded that this was not mere negligence. Rather, “such irresponsible and shiftless behavior can only lead to one conclusion”: that the data was lost intentionally. Accordingly, the court ordered that the jury be instructed “that it must presume that the lost information…was unfavorable to ADM.”

O’Berry v. Turner, Nos. 7:15-CV-00064-HL and 7:15-CV-00075-HL, 2016 U.S. Dist. LEXIS 55714, (M.D. Ga. Apr. 27, 2016).


The amendments to the federal rules governing ESI, particularly Rule 37(e), were supposed to create clarity and consistency in spoliation sanctions. However, courts can still interpret those rules very differently. Here, arguably negligent actions in failing to take steps to preserve ESI were interpreted as intentional action to deprive the opposing party of information. The case signals to all companies the necessity of creating a comprehensive preservation process, including a legal hold procedure that addresses both paper documents as well as electronic copies of documents held internally and by third-party vendors.

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