Jeremiah J. CROSS, deceased, BY AND THROUGH his Personal Representative Valerie STEELE, Plaintiff, v. XPO EXPRESS, INC. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Graysen D. Cross, deceased, by and through his Personal Representative Valerie Steele, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Shirley G. Oickle and Douglas M. Oickle, Individually and as Personal Representatives) of the Estate of Crystal G. Oickle, a/k/a Crystal G. Cross, Deceased, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Barry A. Himes, deceased, by and through his Personal Representative and Mother, Eleanor Miller Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants. Jacqueline Ann McCann, deceased, by and through her Personal Representatives, Constance M. Huff and Ray Huff, Plaintiff, v. XPO Express, Inc. f/k/a Express 1, Inc., XPO Logistics, Inc., Cliffside Transportation Services LLC and Timothy Craig Groshans, Defendants Civil Action No. 4:15-2480-BHH, Civil Action No. 4:15-2481-BHH, Civil Action No. 4:15-2773-BHH, Civil Action No. 4:16-1253-BHH, Civil Action No. 4:16-1254-BHH United States District Court, D. South Carolina Signed December 21, 2016 Counsel Mark Christopher Joye, Mark Joseph Bringardner, Joye Law Firm, Charleston, SC, for Plaintiff. T. David Rheney, William T. Young, III, Gallivan White and Boyd, Greenville, SC, for Defendants XPO Express Inc, XPO Logistics Inc. Duke Raleigh Highfield, Brandt Robert Horton, Victoria Leigh Anderson, Young Clement Rivers and Tisdale, Charleston, SC, for Defendant Cliffside Transportation Services LLC. Mark Steven Barrow, Sweeny Wingate and Barrow, Columbia, SC, Martin S. Driggers, Jr., Sweeny Wingate and Barrow, Hartsville, SC, for Defendant Timothy Craig Groshans. Marchant, Bristow, United States Magistrate Judge ORDER *1 These actions have been filed by the Plaintiffs against numerous Defendants alleging wrongful death & survival (-2480, -2481, -1253, -1254), negligence (-2480, -2481,-2773, -1253, -1254), negligent entrustment (-2480, -2481, -1253, -1254), negligent hiring (-2480, -2481, -1253, -1254), retention (-2480, -2481, -1253, -1254), maintenance & supervision (-2480, -2481, -1253, -1254), piercing the corporate veil/alter ego (-2480, -2481, -2773, -1253, -1254), and amalgamation of interests (-1253, -1254). These claims arise out of a rear-end motor vehicle crash on Interstate 95 on March 21, 2015 in which five people were killed. At the time of the crash, Defendant Groshans was driving the tractor-trailer involved in the crash. Plaintiffs allege that the tractor-trailer was owned by the Defendant Cliffside Transportation Services, and at the time of the accident was leased to the Defendants XPO Express, Inc. and XPO Logistics, Inc. (hereinafter “XPO”) under a subcontractor agreement. This matter is before the Court pursuant to renewed motions to compel and motions for sanctions which have been filed the Plaintiffs. A hearing was held on these motions on December 20, 2016, at which the parties were represented by able counsel,[1] and during which the motions were granted in part, and denied, in part. This Order memorializes the results, rulings and instructions from the hearing. I. With respect to the renewed motions to compel, the Court was advised that only certain matters remained in dispute, as follows: Plaintiffs argue that the Bates stamped documents Nos. 6735, 6736, 6741, 6742, and 6747-6756 from ¶ 12(a) of the renewed second motion to compel have not been provided. Defense counsel agreed that these documents had not been provided, but represented that XPO was claiming a privilege with respect to these documents, and that XPO would update its privilege log to include these documents. XPO agreed to produce this updated privilege log to the Plaintiffs on or before Friday, December 23, 2016. Plaintiffs were instructed that if they wished to contest the privilege being asserted for these documents, they are to so notify the Court on or before Friday, December 30, 2016. In that event, any documents to which Plaintiffs contest the privilege shall be produced by XPO to the Court for in camera review on or before January 6, 2017. The Court will then issue a final order with respect to whether these documents are subject to discovery. With respect to Request to Produce No. 21, the Court found that the material produced by XPO in response to this request to be sufficient, and therefore Plaintiff’s motion to compel with respect to that request to produce was denied. With respect to Request to Produce No. 22, XPO was ordered to provide the same material provided in its response to Request No. 21 (which requested 2014 year end financial statements) for year end 2015. Defendant is also to provide a quarterly financial statement for the first quarter of 2015, if such exists, but if not, Defendant shall provide an affidavit from an appropriate official that no such documentation exists.[2] With respect to Request to Produce No. 23, XPO was instructed to provide this same material (as soon as it is available) for the year 2016. With respect to Requests to Produce Nos. 24, 25 and 26, Plaintiffs' motions to compel were denied without prejudice. Plaintiffs were instructed to submit more narrowly tailored requests with respect to the types of material sought in these requests, perhaps after taking the deposition of XPO Logistics' Chief Financial Officer. *2 With respect to Requests to Produce Nos. 45 and 46, XPO was directed to provide the material sought in these requests, if it had not already done so. XPO was further instructed to file an affidavit from an appropriate official with the Defendant attesting that all material available and subject to these requests had been turned over, and that if or to the extent any of this material had not been preserved and/or had been deleted or destroyed (and therefore not available for production), an explanation was to be provided in the affidavit from the XPO official as to what happened to the destroyed or deleted material. All of the information or materials ordered to be provided to Plaintiffs as set forth hereinabove are to be provided no later than January 13, 2017. II. With respect to Plaintiffs' motion for sanctions, this motion involves some Omnitracs messaging for the time of the accident at issue which XPO failed to preserve for discovery, as well as some discovery that had previously been ordered to be produced, but which had not been. With respect to the messaging issue, Plaintiffs argue that the truck Groshans was driving was equipped with a messaging system called Omnitracs, which would have allowed the Plaintiffs to check the messages sent and received during the time at issue to determine Groshan’s duty status, but that the XPO Defendants failed to preserve this information. As explained by the parties at the hearing, the tractor-trailer had a device installed through which a company called Omnitracs received various information from the tractor-trailer such as location, speed, etc. This system also had a messaging feature whereby XPO and their drivers could message each other. This information was received and stored by Omnitracs for a period of one hundred eighty (180) days, after which the information was deleted or destroyed unless Omnitracs was instructed otherwise. Following the accident at issue in this lawsuit on March 21, 2015, XPO received preservation letters (to include any Omnitracs messaging) from Plaintiffs' counsel on April 6, 2015, April 13, 2015, May 12, 2015, and June 18, 2015. A separate notification and request to examine the truck was also received by XPO on or about April 29, 2015. As such, XPO was obviously on notice to preserve this information. However, the information was not preserved, at least not by Omnitracs. Plaintiffs' motion for sanctions seeks sanctions against XPO for spoliation and the destruction of this material pursuant to Rule 37(e), Fed.R.Civ.P. In order for Rule 37(e) to apply, 1) there must have been a duty to preserve the ESI at issue; 2) a party must have failed to take reasonable steps to preserve the ESI; 3) the ESI must have been lost as a result of the failure to take reasonable steps to preserve it; and 4) the ESI must not be recoverable through additional discovery. See Rule 37(e); cf. O'Berry v. Turner, No. 15-64, 15-75, 2016 WL 1700403, at * 3 (M.D. Ga. Apr. 27, 2016). While the Court was prepared to make a ruling on this issue at the hearing, counsel for the Defendant Timothy Groshans represented to the Court at the hearing that, although any messaging at issue in Plaintiffs' sanction motions may not have been preserved by Omnitracs, that the Omnitracs device itself that had been installed in the truck retained any messaging from the relevant time period up to the time of the accident, and therefore the ESI at issue was recoverable from this other source. However, no evidence to support this representation was identified or presented,[3] and the Court determined that it was unable to make a final ruling on Plaintiffs' sanction motion (with respect to the spoliation issue) absent such evidence. Counsel for the parties were therefore directed to discuss and submit a proposed discovery schedule to obtain competent evidence as to whether this requested material does in fact still exist and can be obtained from the Omnitracs device that had been installed in the truck. As part of this process, Plaintiffs are to be provided access to this device.[4] Since counsel were unsure how long this process would take, no deadline was given by the Court; however, the parties are directed to pursue this discovery to try and resolve this issue as expeditiously as possible. The Court will then issue such additional orders as are necessary and appropriate, to include a final order on Plaintiffs' motion for sanctions for spoliation. *3 Plaintiffs' sanction motion also included a request for sanctions against XPO for failure to comply with the Court’s Order granting a previous motion to compel on May 3, 2016. Defense counsel conceded that at least some of the material ordered to be produced had still not been produced as of the hearing, although counsel stated that with respect to some other requests (which Plaintiff contended were also still outstanding) XPO had provided all material it had in its possession responsive to those requests. The Court instructed Plaintiffs' counsel to submit a letter on or before Friday, December 23, 2016, specifically outlining what items ordered to be produced by the Court on May 3, 2016 has still not been produced. XPO shall thereafter either produce this material on or before January 13, 2017, or provide an affidavit from an appropriate official from XPO attesting that this material does not exist and/or any material available has been turned over to Plaintiffs. III. Finally, as it is readily apparent that XPO failed to timely comply with Judge Hendricks' Order of May 3, 2016, with respect to the production of materials, to include (but not exclusive of) timely production of a privilege log to the Plaintiffs, Plaintiffs' motion for monetary sanctions as a penalty for this failure to comply was granted. Plaintiffs were directed to prepare an affidavit of fees and costs incurred by Plaintiffs for having to pursue a renewed motion to compel and/or motion for sanctions with respect to this material, and submit same to the Court and counsel for XPO by January 13, 2017. XPO will then have thirty days to contest the amount of any fees and costs being sought, following which a final order will be issued by the Court. IT IS SO ORDERED. Footnotes [1] Counsel for Cliffside Transportation Services, LLC was not in attendance since the matters raised in the motions did not pertain to their client. However, notice of the hearing was provided to this Defendant. [2] While Defendant has provided certain year-end balance sheets or XPO Express, the affidavit should also affirm (as was represented by XPO counsel at the hearing) that there are no separate year end financial statements for XPO Express, such as have been provided for XPO logistics. The affirmation should also state whether the year end financial statements that have been provided qualify as “audited” statements. [3] Defense counsel did submit several printouts of messages, but without any supporting evidence as to the extent that these messages may have encompassed the entire time period at issue. SeeDefendant’s Memorandum in Opposition to Sanctions, Exhibit A. [4] Defense counsel represented that this device had been removed from the trunk, and was currently in the possession of SEA Charlotte, a consulting firm for the Defendants.