Decision Finds Washington Courts Rejected Duty to Preserve

Cook v. Tarbert Logging, Inc., No. 32000-6-III, 2015 WL 5771329 (Washington. Ct. App. Oct. 1, 2015)

The appellate court reversed the trial court’s decision that Washington state had recognized a general duty to preserve evidence and remanded the case because the trial court allowed the equivalent of an adverse inference instruction where a party destroyed evidence negligently.

This negligence case arose from a 2009 vehicle collision between a pickup truck carrying the plaintiffs, a husband and wife, and a logging truck on a road slippery from ice and snow. The husband was injured, and the truck was totaled. The plaintiffs sued the logging truck driver, his employer, and the county where the accident occurred for its failure to plow the road properly. The plaintiffs’ lawyer told them to keep the truck indoors “until further notice,” and ultimately the lawyer and an expert inspected the truck and took photographs. They did not remove the airbag control monitor (ACM) from the truck or download its data, which could have provided reliable evidence of the truck’s speed at the time of the accident. After retaining the truck until late 2009 or sometime in 2010, the truck was sold.

Not until 2012 did the county ask the plaintiffs to inspect the truck. When the county learned the truck had been sold, it, along with the other defendants, filed a motion to exclude testimony about vehicle speed from the plaintiffs’ expert, who had concluded that the plaintiffs were driving more slowly than the logging truck driver. They asserted that the sale of the pickup “mandated an inference that the evidence, had it been preserved, would have been unfavorable to the [plaintiffs’] position.” The plaintiffs argued that none of the defendants sent them a legal hold, nor could the defendants identify any duty that the plaintiffs had to retain the truck indefinitely.

The trial court ruled that the plaintiffs “‘did not act in bad faith or with deliberate intention to destroy the evidence,’” but they had a common-sense duty to keep the truck because the defendants were not required to “demand access instantly to the item.” It was foreseeable that the defense “‘might want to have the opportunity” to inspect the vehicle and its ACM. Simply put, “they were ‘aware of [the truck’s] importance and relevance.’” Therefore, the court excluded the plaintiffs’ expert’s testimony on speed and ultimately decided not to give the jury an instruction on spoliation. The court also allowed the defendants to mention the sale of the truck after the plaintiffs’ expert inspected it, precluding any opportunity for a defense inspection. On this latter point, the plaintiffs’ counsel objected, as it would allow the jury to improperly — and incorrectly — infer that the expert’s opinions did not favor the plaintiffs. The plaintiffs were not allowed to rebut this conclusion, and the jury returned a verdict for the defendants.

On appeal, the plaintiffs raised three issues. First, they argued that the trial court abused its discretion when it decided that they had a duty to preserve the truck. Second, they argued that the court abused its discretion by allowing testimony regarding their nontestifying expert, and third, that the court failed to allow them to rebut this “false inference” by showing that their expert’s conclusions supported their claim.

The appellate court decided that Washington courts had rejected a “general duty to preserve evidence.” It also found that an adverse inference instruction was inappropriate without a showing of bad faith or gross negligence. Therefore, the Washington trial court abused its discretion in ruling that the defendants could present evidence suggesting that the jury could draw an adverse inference from the loss of the truck where the plaintiffs were at most “merely negligent.”

The court concluded that the error was harmless as to the county, as driving speed was irrelevant to the issue of how well the road was plowed. However, it was relevant to the other defendants, and thus the appellate court reversed the Washington courts’ judgment and remanded the case to the trial court for a new trial.

Takeaways on ediscovery preservation

In ruling, the appellate court looked to federal and state case law as well as the recent amendments to the Federal Rules of Civil Procedure (FRCP). The court concluded that it “might be time” for the state to “reexamine” whether a general duty to preserve should exist in Washington but declined to explore the issue because the parties had not briefed it.

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