A Discovery Trainwreck

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11Jul2007

A Discovery Trainwreck

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A Discovery TrainwreckMany types of voice and video records are only kept for a short time before being overwritten, so these must be identified and preserved as soon as it is known that they may be needed for a case. Two Eighth Circuit decisions illustrate this point.

Stevenson vs. Union Pacific Railroad Company

This case arose out of an incident where a train hit a car. A piece of evidence the plaintiffs wanted was a voice tape of conversations between the train crew and the dispatcher at the time of the accident. The tape was destroyed in accordance with the company’s routine document retention policies, recycled after 90 days, so the plaintiffs requested and received sanctions of an adverse inference instruction, as well as costs and fees, for spoliation of evidence. The jury returned a $2 million award.

The appellate court upheld the judges’ ruling finding that: “The requisite element of prejudice is satisfied by the nature of the evidence destroyed in this case. While there is no indication that the voice tape destroyed contained evidence that could be classified as a smoking-gun, the very fact that it is the only recording of conversations between the engineer and dispatch contemporaneous with the accident renders its loss prejudicial to the plaintiffs.”

Morris v. Union Pacific

This rule, however, is not universal. In a similar case the following year involving destroyed tapes and adverse inference, Morris v. Union Pacific, the court reversed the District Court and remanded the case for a new trial, holding that, “Variances in key personnel, nuances in fact situations, or even different credibility assessments of identical evidence can lead to varying conclusions about the formation of corporate intent. … The adverse inference instruction, when not warranted, creates a substantial danger of unfair prejudice.”

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