Barrett v. FedEx Custom Critical, Inc., No. 3:17-CV-62 (CDL), 2018 WL 1722385 (M.D. Ga. Apr. 9, 2018).

In this personal injury case, the court denied sanctions despite poor preservation and admitted spoliation because the loss of evidence caused no prejudice.

The plaintiff, Presidee Barrett, claimed that a FedEx vehicle struck and injured him while he was in an interstate breakdown lane. Barrett’s lawyer promptly notified FedEx of his injury and his intent to sue.

As part of his defense, Barrett asserted that the driver was “impaired due to fatigue” and that FedEx knowingly dispatched him anyway. Barrett thus sought driver- and vehicle-tracking information during discovery.

FedEx used two tracking systems at that time: Omnitracs, which monitored driver status, and Pro Detail, which tracked vehicles by their GPS locations. The Omnitracs data would have shown exactly how many hours the driver was on duty leading up to the accident. However, the vendor “automatically purged” that data every 180 days. FedEx inexplicably failed to instruct Omnitracs to preserve the data for this driver. After 180 days, the data was irretrievable.

FedEx did preserve the Pro Detail data, though. More importantly, the record showed that this driver “only operated one truck” for FedEx and did not drive for any other carrier. Therefore, the Pro Detail report for the involved truck showed all the driver’s active time — 41 hours in eight days.

Barrett moved for spoliation sanctions for FedEx’s admitted failure to preserve evidence. Specifically, he asked the court to strike FedEx’s answer. In the alternative, he asked the court to prevent FedEx from presenting any evidence to contest liability or punitive damages.

The court noted that spoliation sanctions should “prevent unfair prejudice to litigants” and ensure integrity in the legal process. Thus, the court should reserve the severest of those sanctions “for exceptional cases.” In weighing sanctions here, the court evaluated the extent of any prejudice and the party’s ability to cure it. The court also considered the “practical importance of the evidence,” FedEx’s degree of fault, and the potential for abuse.

Barrett asserted that “the Omnitracs data was central to his claim” that the accident occurred because the driver was excessively tired. The court agreed that “if the Omnitracs data were the only evidence,” that might be “a good argument” for sanctions. But, of course, it wasn’t. Under the existing record, the vehicle’s tracking data provided the driver’s active driving time.

Therefore, the court found it “difficult to see how FedEx’s failure to preserve” the Omnitracs data could cause “uncurable prejudice.” Moreover, “the practical importance of the Omnitracs data [wa]s low,” given that the truck information replaced it.

The court found that the admitted loss of evidence caused no sanctionable prejudice. Accordingly, it denied the harsh sanctions Barrett requested.

Takeaways on Preserving Relevant Data

FedEx dodged sanctions here despite what appears to have been a poor legal hold notification. Remember that good preservation begins with good information governance. Know what data you have, where it is, and who maintains that data. Be mindful of automatic deletion protocols! Ensure that you review your preservation effort before the shortest of those windows closes so you don’t lose critical data.

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We’re here to help you master ediscovery, starting with strong preservation. If you need a hand or have questions, please contact us.