OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Plaintiff Gregory Wiedeman's ("Plaintiff") Renewed Motion for Sanctions Against Defendants H&F Transfer, Inc. and Salem Leasing Corporation  ("Renewed Sanctions Motion").
This action arises from an August 8, 2014, collision (the "Collision") between Plaintiff and Defendant Walter Patrick Dorn, IV, an employee of Defendant H&F Transfer, Inc. ("H&F"). The truck Dorn was driving was leased by H&F from Salem Leasing Corporation ("Salem"). Plaintiff claims H&F and Salem conspired to destroy, conceal, and falsify data from the electronic control module ("ECM") of the truck involved in the Collision.
On the day of the Collision, the investigating officer found Plaintiff at fault for causing the Collision and issued Plaintiff a citation for failure to yield to the red light. Plaintiff told the officer "he did not know what he was thinking running the red light." ( at 2-3).
On August 11, 2014, three days after the Collision, H&F returned the truck to Salem, after which H&F did not have possession, custody, or control of the truck or the ECM data contained in it. ( at 2-3). On August 14, 2014, Salem performed what it claims is an industry-standard preventative maintenance check on the truck. ( at 3). The purpose of the check is to identify any maintenance issues to ensure the truck can be safely operated before it is leased to the next customer. ( at 4). This maintenance check resulted in a reset and deletion of non-maintenance data from the truck's ECM. ( at 5). Salem claims it was not aware that the maintenance check procedure would reset non-maintenance data resident on the ECM. ( at 4).
On August 18, 2014, H&F retained John Bethea to inspect the truck. On August 26, 2014, Mr. Bethea inspected the truck. In his July 27, 2016, expert report, Mr. Bethea opined that (1) no sudden deceleration was recorded by the ECM within the subject truck at the time of the incident and (2) it is not possible for any sudden deceleration data related to the subject incident to have been overwritten by subsequent sudden deceleration events because the incident was never captured by the ECM. ( at 4).
On October 7, 2014, Plaintiff sent H&F a letter regarding preservation of evidence. Plaintiff did not send a similar letter to Salem. ( at 4).
On August 11, 2016, Plaintiff filed his first Motion for Sanctions. At a September 2, 2016, hearing, the Court determined that it did not have sufficient information to rule on Plaintiff's motion, and it required H&F and Salem to recover and produce the laptop Mr. Bethea used during his inspection. The Court allowed Plaintiff to file a renewed sanctions motions. Two months later, Plaintiff received a hard drive from the laptop, which revealed that the truck's ECM had been accessed between the Collision and Mr. Bethea's inspection. The data shows that, prior to the reset, the ECM recorded three sudden deceleration events, one of which Plaintiff claims "likely was the incident in this case." ( at 4).
On April 5, 2017, Plaintiff filed his Renewed Sanctions Motion. H&F claims that the conduct of which Plaintiff complains took place after H&F transferred the truck to Salem, and that H&F thus cannot be held liable for any alleged spoliation. Salem claims that, because litigation was not reasonably foreseeable, it did not have a duty to preserve the ECM data at the time it accidentally reset the data during its maintenance check.
"Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation."
Even if the Court finds spoliation, a sanction of default or an instruction to the jury to draw an adverse inference from the party's failure to preserve evidence is allowed "only when the absence of that evidence is predicated on bad faith."
H&F argues that it cannot be held liable for any alleged spoliation of evidence because the undisputed facts show that the truck, and thus the ECM data at issue, was not in its possession, custody, or control on August 14, 2014, when the ECM data was reset. The Court agrees. "It is axiomatic that in order for there to be spoliation, the evidence in question must have existed and been in the control of a party."
Salem argues that Plaintiff failed to establish spoliation, including because litigation was not reasonably foreseeable on August 14, 2014, when the ECM data was reset. "[I]n order for the injured party to pursue a remedy for spoliation, the spoliating party must have been under a duty to preserve the evidence at issue."
Constructive notice may be based on a variety of circumstances, including "the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances."
Here, Plaintiff argues "Defendants cannot dispute that they anticipated litigation on August 18, 2014." ( at 15). The question, however, is whether, from Salem's perspective, litigation was reasonably foreseeable on August 14, 2014, when the alleged spoliation occurred. The Court finds it was not. The investigating officer on the day of the Collision found Plaintiff at fault for causing the Collision, and Plaintiff told the officer "he did not know what he was thinking running the red light." ( at 2-3). Salem presents evidence that, even as late as August 25, 2014, it was under the impression that there was no dispute as to whether Plaintiff caused the Collision, and that it attempted to have Plaintiff's insurance company cover the damage caused to Salem's truck. ( at 4, 12). The evidence is, based on the information available to Salem, that Plaintiff was not contemplating action against Salem.
Plaintiff next claims "Defendants' investigations of the accident show that they knew litigation as likely." ( at 15). Plaintiff, however, does not identify what actions either H&F or Salem took on or before August 14, 2014, that might qualify as an "investigation." Assuming Plaintiff refers to the August 14, 2014, maintenance inspection, Salem presents evidence that such inspections are performed on all commercial vehicles that have been leased and returned. (
Finally, to the extent Plaintiff bases his spoliation claim on Defendants' alleged falsification of data to support Bethea's expert report, and their alleged concealment of their misconduct from Plaintiff and the Court, Plaintiff's claim rests on the assumption that Salem or H&F was aware that the ECM data was reset. The Court finds Plaintiff presents only speculation that either Salem or H&F was aware of this fact. In the absence of evidence of bad faith, the Court declines to award sanctions for spoliation.
For the foregoing reasons,