*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Plaintiff’s Motion for Sanctions. [Docket No. 52]. Following a hearing on Plaintiff’s Motion, the Court took Plaintiff’s Motion under advisement. (Minutes [Docket No. 68] ).

For reasons discussed herein, Plaintiff’s Motion for Sanctions, [Docket No. 52], is DENIED.

I. Background

On April 3, 2018, Plaintiff “purchased a pre-owned Kormit Digital Printer for $100,000.00” (hereinafter the “Printer”). (Amended Compl., [Docket No. 16], at 2). The Printer was located in Los Angeles, California; however, Plaintiff made arrangements to have the Printer shipped to Plaintiff’s facility in St. Cloud, Minnesota. (Id.). As part of those shipping arrangements, Defendant Western Specialized, Inc. (hereinafter “Defendant”) was contracted to transport the Printer from Los Angles, California to Plaintiff’s facility in St. Cloud, Minnesota. (Id. at 2–3).

On April 17, 2018, Kelly Hauser, a semi-truck driver for Defendant, arrived in Los Angles to pick up the Printer, and the Printer was loaded into her semi-trailer. (Hauser Depo, [Docket No. 55-3], at 10:1–16:25). Plaintiff alleges that when the Printer was loaded on Ms. Hauser’s semi-trailer the Printer was in “good, undamaged condition.” (Amended Compl., [Docket No. 16], at 3). With a total of three loads in her trailer, including the Printer, Ms. Hauser drove the semi-truck and attached semi-trailer to Defendant’s facility in Mankato, Minnesota, over the course of the next three days. (Hauser Depo, [Docket No. 55-3], at 41:1–44:25). Upon arriving at Defendant’s facility in Mankato, Minnesota, Ms. Hauser detached the semi-trailer containing the Printer from her semi-truck.

After Ms. Hauser detached her semi-truck from the semi-trailer, on April 20, 2018, another of Defendant’s drivers, Duane Hanson, attached his semi-truck to the semi-trailer containing the Printer. (Hanson Depo, [Docket No. 55-4], 9:1–12:25). During Mr. Hanson’s first delivery involving the semi-trailer containing the Printer, Mr. Hanson became aware of an air leak in a rubber hose on the semi-trailer. (Id. at 17:1–24:25). Mr. Hanson completed the first delivery, fixed the air leak, and began heading to St. Cloud, Minnesota to deliver the Printer. (Id.).

Upon arriving at Plaintiff’s facility in St. Cloud, Minnesota, Plaintiff’s employees began to unload the Printer at which time Plaintiff’s employees discovered the Printer was damaged. (Id. at 25:1–32:25). Mr. Hanson took pictures of the Printer, reported the damage to Defendant’s dispatcher, and the Printer was unloaded. (Id.).

Defendant’s owner, Robert Bjerke, was subsequently informed of the alleged damage to the Printer. (Bjerke Depo, [Docket No. 55-5], at 21:1–27:25). After Mr. Hanson’s initial report of alleged damage to the Printer, Mr. Bjerke’s subsequent conversation with another unspecified person, and Mr. Bjerke’s viewing of the pictures he received from Mr. Hanson as well as from an employee of the brokerage company that hired Defendant, Mr. Bjerke believed the alleged damage to the Printer included damage to the “inkjets” and a “monitor.” (Id.). Mr. Bjerke told an unspecified person inquiring about the damage to “get a repair order, find out how much it cost, and to “e-mail it to” him. (Id.).

*2 In a letter dated May 3, 2018, Plaintiff’s counsel informed Defendant for the first time that the Printer appeared “to be a total loss as a result of the damage sustained while being transported from California.” (Letter [Docket No. 55-10] ). The letter informed Mr. Bjerke that Plaintiff would be seeking “reimbursement for the cost of the machine, the expenses incurred in preparing the machine for shipment as well as any business losses incurred as a result of the delay in getting the machine into operation.” (Id.).

Upon learning that the alleged damage to the Printer was a “total loss” for which Plaintiff was seeking reimbursement in an amount greater than $100,000, Mr. Bjerke called his insurance company, and he began looking into the alleged damage. (Bjerke Depo, [Docket No. 55-5], at 25:25–31:23). Mr. Bjerke began his investigation by “pull[ing] up the hard brakes on Kelly’s truck to see if there [were] any hard brakes ....” (Id.). Mr. Bjerke accessed the “hard brake” data for the semi-truck Ms. Hauser drove through remote access to the electronic log for that truck. (Id.). Mr. Bjerke appears to have retrieved Ms. Hauser’s “hard brake” data on May 9, 2018. (See, Speed Brake Summary [Docket No. 55-6] ) (indicating it was accessed on May 9, 2015).

Mr. Bjerke did not check the “hard brake” data for Mr. Hanson’s truck. (Id.). In his deposition on August 27, 2019, Mr. Bjerke testified that he did not check the “hard brake” data for the truck driven by Mr. Hanson because it was an older model which “only keeps the data for so long,” and it could not be remotely accessed. (Id.). Specifically, Mr. Bjerke testified during his deposition that the truck data for the truck driven by Mr. Hanson, including the “hard brake” recordings, would have been erased when the truck went in for “service” because “they pull the data down, and then it clears.” (Id.). Mr. Bjerke further testified that the service technicians are capable of preserving the truck data before it is cleared; however, at the time of his deposition on August 27, 2019, he did not recall whether or not he requested the service technicians do so. (Id.). When asked in his deposition whether or not he was aware if the “hard brake” data for the truck driven by Mr. Hanson “exists,” Mr. Bjerke testified that he did not know. (Id.).

Plaintiff initiated the present action by filing its Complaint on October 19, 2018. [Docket No. 1]. On January 24, 2019, Plaintiff filed its operative Third Amended Complaint. [Docket No. 16]. As it relates to Defendant, Plaintiff’s Third Amended Complaint raises a single claim against Defendant pursuant to the Carmack Amendment.

On April 19, 2019, the undersigned issued the Pretrial Scheduling Order in the present case. (Pretrial Scheduling Order [Docket No. 38] ). The Scheduling Order established November 15, 2019, as the date by which all discovery must be completed. (Id.).

On May 21, 2019, Defendant served Plaintiff with Defendant’s Rule 26 Initial Disclosures. (Def.’s Initial Disclosures [Docket No. 55-7] ). Defendant’s initial disclosures erroneously indicated that Ms. Hauser “was the driver who operated the Western truck that received the printer and transported the shipment from California to St. Cloud Minnesota.” (Id.).[1]

*3 On August 1, 2019, during the deposition of Richard Busch, counsel for the parties learned that Ms. Hauser was in fact not the driver that delivered the Printer from Mankato, Minnesota to St. Cloud, Minnesota. (Plf.’s Mem., [Docket No. 54], at 4; Busch Depo. [Docket No. 55-9] ). Subsequently, on August 22, 2019, Defendant amended its initial disclosure and discovery responses to reflect Mr. Hanson as the driver that delivered the Printer from Mankato, Minnesota to St. Cloud, Minnesota. (Def.’s Amended Initial Disclosures [Docket No. 65-3] ).

On August 27, 2019, Ms. Hauser, Mr. Hanson, Mr. Bjerke, and several other persons were deposed by Plaintiff’s counsel. Prior to these depositions, Defendant provided Plaintiff with the “hard brake” data from Ms. Hauser’s semi-truck. (Bjerke Depo, [Docket No. 55-5], at 25:25–31:23; see, Speed Brake Summary [Docket No. 55-6] ) (indicating it was marked as an exhibit in Ms. Hauser’s deposition).

On December 13, 2019, Plaintiff filed the present Motion for Sanctions. [Docket No. 52].

II. Standard of Review

“[F]ederal law applies to the imposition of sanctions for the spoliation of evidence.” Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012). A Court can impose sanctions for spoliation of evidence based on its inherent authority to manage the judicial process. Bass v. Gen. Motors Corp., 150 F.3d 842, 851 (8th Cir. 1998).

“To establish spoliation, the moving party must show that the adverse party destroyed potential evidence, that the evidence was discoverable, and that the loss of evidence prejudiced the moving party.” Nicollet Cattle Co. v. United Food Grp., LLC, No. 8-cv-5899 (JRT/FLN), 2010 WL 3546784, at *4 (D. Minn. Sept. 7, 2010) (citing Lexis–Nexis v. Beer, 41 F. Supp. 2d 950, 954 (D. Minn. 1999)). The party seeking sanctions bears the burden of proving spoliation. Stevenson v. Union Pac. R.R., 354 F.3d 739, 748 (8th Cir. 2003).

“The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth[.]” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “The intentionality requirement means that the destruction must have been purposeful.” Insignia Sys., Inc. v. News Am. Mktg. In-Store, Inc., No. 4-cv-4213 (JRT/AJB), 2009 WL 483850, at *4 (D. Minn. Feb. 25, 2009).

In considering whether to sanction the destruction of evidence, however, a finding of bad faith is not always required. See, Escamilla v. SMS Holdings Corp., No. 9-cv-2120 (ADM/JSM), 2011 WL 5025254, at *11 (D. Minn. Oct. 21, 2011). “If potential evidence is destroyed prior to the commencement of litigation ..., the moving party must also show that the destruction was intentional and in bad faith.” E*Trade Secs. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005)). “If, however, the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown by the moving party.” E*Trade, 230 F.3d at 589.

In either case, the moving party must show that it was prejudiced by the destruction before sanctions are warranted. Id. “To obtain any sanction for the spoliation of evidence, whether intentional or otherwise, the moving party must demonstrate that the destruction of evidence was prejudicial.” Stepnes v. Ritschel, No. 8-cv-5296 (ADM/JJK), 2009 WL 10711698, at *3 (D. Minn. Oct. 1, 2009) (citing Stevenson v. Union Pac. R.R., 354 F.3d 739, 758 (8th Cir. 2003)); see, E*Trade, 230 F.3d at 589.

III. Plaintiff’s Motion for Sanctions. [Docket No. 52].

*4 Plaintiff seeks an Order of this Court imposing sanctions against Defendant for allegedly permitting the “hard brake” data for the truck driven by Mr. Hanson’s to be destroyed. (Plf.’s Mot. [Docket No. 52] ). Specifically, Plaintiff seeks an adverse inference instruction to the jury or, in the alternative, an Order of this Court “[b]arring any testimony, exhibits, or evidence that tends to show that Western’s driver, Duane Hanson, did not have any sudden stops or events during the transport of the” Printer. (Id.).[2]

As noted above, to obtain relief in the form of any of the requested sanctions, Plaintiff is required to demonstrate it has been prejudiced by the destruction of evidence. Stevenson v. Union Pac. R.R., 354 F.3d 739, 758 (8th Cir. 2003); Stepnes v. Ritschel, No. 8-cv-5296 (ADM/JJK), 2009 WL 10711698, at *3 (D. Minn. Oct. 1, 2009); E*Trade, 230 F.3d at 589. This showing of prejudice is required, regardless of the sanction requested.

At the Motions Hearing, Plaintiff’s counsel agreed that if Plaintiff had failed to request in discovery the “hard brake” data from the truck driven by Mr. Hanson, then there is no prejudice to Plaintiff in not now having the “hard brake” data. (January 13, 2020, Motions Hearing, Digital Record at 1:52–1:54 p.m.). Accordingly, the issue now before the Court is whether or not Plaintiff requested the “hard brake” data from the truck driven by Mr. Hanson.

In the present case, Plaintiff has failed to demonstrate the requisite prejudice stemming from the alleged destruction of the “hard brake” data from Mr. Hanson’s semi-truck. Simply put, Plaintiff has failed to demonstrate that it ever requested the Hanson semi-truck “hard brake” data from Defendant, and if the “hard brake” data did not merit enough importance to be formally and expressly requested through discovery, then the lack of said data cannot be reasonably described as prejudicial.

As mentioned above, the record presently before the Court lacks any indication that Plaintiff ever specifically requested the Hanson semi-truck “hard brake” data from Defendant. Even after Defendant disclosed Ms. Hauser’s “hard brake” data to Plaintiff and Plaintiff was aware that Mr. Hanson was the driver who delivered the Printer from Mankato, Minnesota to St. Cloud, Minnesota, there is no indication in the record that Plaintiff ever requested the “hard brake” data from the truck driven by Mr. Hanson. Similarly, even after the August 27, 2019, deposition of Mr. Bjerke where he testified the Hanson semi-truck “hard brake” data could have been preserved by a service technician, the record before this Court is still devoid of any indication that Plaintiff ever requested the Hanson semi-truck “hard brake” data from Defendant. Plaintiff has failed to show that it requested the subject “hard brake” data, and because discovery is now close, Plaintiff’s time to request said data has passed.

At the Motions Hearing, Plaintiff’s counsel generically asserted that two of Plaintiff’s Requests for Production of Documents could be read to encompass the Hanson semi-truck “hard brake” data. Specifically, Plaintiff’s counsel asserted that Request for Production Nos. 3 and 4 could be read to encompass a request for the “hard brake” data.

*5 The Court finds that neither Request for Production of Documents No. 3 nor Request for Production of Documents No. 4 encompasses a request for the Hanson semi-truck “hard brake” data.

Request for Production of Documents No. 3 asks Defendant to “[p]lease produce your complete job file for the shipment of the printer.” (Def.’s Resp. to RFP [Docket No. 65-4] ). Plaintiff fails to offer any assertion, and the record lacks any indication, that “hard brake” data, is part of Defendant’s “job file.” Because the “hard brake” data is not part of the “job file,” the request for the “job file” fails to encompass a request for the Hanson semi-truck “hard brake” data.

Request for Production of Documents No. 4 asks Defendant to “[p]lease produce any and all documents, including correspondence, that you believe supports, refutes, or otherwise bears on Plaintiff’s claims for damages.” (Id.) (emphasis added). On the face of Plaintiff’s Request for Production of Documents No. 4, however, it is apparent that it seeks documents related to monetary damages such as the value of the Printer and the resulting business interruption losses. The Hanson semi-truck “hard brake” data is not relevant to the issue of monetary damages.

Furthermore, as observed above, as of at least August 27, 2019, Plaintiff was specifically aware that the “hard brake” data of the type now at issue once may have existed for the truck driven by Mr. Hanson. However, even after Plaintiff had been provided with this notice, Plaintiff failed to make any request for production of the “hard brake” data from the truck driven by Mr. Hanson. The record is simply devoid of any indication that Plaintiff ever requested said data.

Plaintiff has failed to highlight, and this Court does not find, any case where a Court has imposed the sanctions—as requested by Plaintiff—upon a non-moving party based on the alleged destruction of evidence when the moving party failed in discovery to even request the allegedly destroyed evidence. In fact, at the Motions Hearing, Plaintiff’s counsel agreed that if Plaintiff had failed to requested the Hanson semi-truck “hard brake” data through discovery, then there can be no prejudice in now lacking the “hard brake” data. (January 13, 2020, Motions Hearing, Digital Record at 1:52–1:54 p.m.). Because Plaintiff has failed to demonstrate that it ever requested the “hard brake” data from the truck driven by Mr. Hanson, Plaintiff has failed to demonstrate the requisite prejudice to impose any sanction upon Defendant.

It is Plaintiff’s burden to demonstrate prejudice. Stevenson v. Union Pac. R.R., 354 F.3d 739, 758 (8th Cir. 2003); Stepnes v. Ritschel, No. 8-cv-5296 (ADM/JJK), 2009 WL 10711698, at *3 (D. Minn. Oct. 1, 2009); E*Trade, 230 F.3d at 589. Plaintiff’s failure to do so represents a sufficient, independent basis to deny Plaintiff’s Motion for Sanctions. [Docket No. 52].

Further, the Court notes that even assuming solely for the sake of argument that Plaintiff’s discovery requests could be so broadly and liberally construed as to encompass the Hanson semi-truck “hard brake” data, Plaintiff has failed to show that the “hard brake” data from the truck driven by Mr. Hanson was destroyed after Defendant received notice of the present action or should have been aware of the present action.

*6 Mr. Bjerke testified during his August 27, 2019, deposition that the “hard brake” data on the truck driven by Mr. Hanson would have been destroyed when the truck was taken in for regular service and a service technician connected the truck to the service computer unless Mr. Bjerke specifically requested that the data be saved. The record presently before the Court, however, lacks any indication by Plaintiff as to when the truck driven by Mr. Hanson went in for regular service.

The record presently before the Court indicates that Mr. Bjerke first became aware of the present claim, or at least became aware that the reimbursement claim would be for far more than a “monitor” and “ink jet” repair, on May 3, 2018, when he received a letter from Plaintiff’s counsel. There is no indication by Plaintiff in the record, however, whether or not the truck driven by Mr. Hanson was taken in for regular service before or after this May 3, 2018, date.

In short, Plaintiff has failed to demonstrate that the “hard brake” data from the truck driven by Mr. Hanson was destroyed after Defendant was provided notice of the present action. The Court is in no position to assume the data at issue was destroyed after notice of suit. It is Plaintiff who bears the burden of proving spoliation. Stevenson v. Union Pac. R.R., 354 F.3d 739, 748 (8th Cir. 2003). The Court, therefore, can only assume that if the “hard brake” data was destroyed, it was inadvertently destroyed before any notice of suit.

Therefore, Plaintiff’s Motion for Sanctions, [Docket No. 52], is DENIED.

IV. Conclusion

Therefore, for the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT Plaintiff’s Motion for Sanctions, [Docket No. 52], is DENIED.