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Kellar v. Union Pac. R.R. Co.

2024 WL 4649244 (E.D. La. 2024)

October 17, 2024

Lemmon, Mary Ann V., United States District Judge

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Summary

The plaintiff and defendant are in a dispute over a single-car collision, with the defendant alleging that the plaintiff intentionally deleted evidence from his cell phone that would prove he was not fatigued at the time of the accident. The magistrate judge found that the plaintiff had engaged in spoliation of evidence and recommended an adverse inference instruction for the jury. Both parties have filed objections, but the court ultimately upholds the magistrate judge's decision.

Additional Decisions

ELMER KELLAR
v.
UNION PACIFIC RAILROAD COMPANY

CIVIL ACTION NO: 21-2045

United States District Court, E.D. Louisiana

Filed October 17, 2024

Lemmon, Mary Ann V., United States District Judge

ORDER AND REASONS

*1 Before the court is the magistrate judge's Report and Recommendation (Rec. Doc. 110) on the Motion for Spoliation Sanctions (Rec. Doc. 73) filed by defendant, Union Pacific Railroad Company (UPRR). Both plaintiff and defendant have filed Objections (Rec. Docs. 111, 112) to the Report and Recommendation. Having reviewed the record and applicable law, and having considered the memoranda and oral argument of counsel, for the reasons that follow,

IT IS HEREBY ORDERED that the plaintiff's Objections (Rec. Doc. 111) are OVERRULED;

IT IS FURTHER ORDERED that defendant's Objections (Rec. Doc. 112) are OVERRULED.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff suffered injuries in a single-car collision following a double-shift working at the UPRR railyard. He contends that his work schedule violated federal hours-of-service (“HOS”) laws applicable to certain railroad workers, and that working the excessive hours caused him to fall asleep at the wheel minutes after leaving the UPRR work site. UPRR contends that plaintiff deleted evidence that he was on his cell phone at the time of the accident that would prove that the accident was due not to fatigue, but to distraction caused by cell phone use, or at a minimum, that he was not asleep.

Following two evidentiary hearings and three rounds of briefing, the magistrate judge concluded that Kellar had intentionally spoliated relevant evidence and as a sanction she recommended that at trial, the court instruct the jury to apply an adverse inference that because Kellar intentionally deleted data from his phone, the evidence contained on his phone would have been unfavorable to him. Rec. Doc. 110, 40-41.

Both parties have timely objected. Plaintiff contends that the sanction is not warranted because the destruction of evidence was unintentional and that UPRR will not suffer any prejudice due to the destruction of the evidence. Defendant contends that the sanction does not go far enough to cure the prejudice it will suffer, and that dismissal of plaintiff's suit is the only adequate sanction.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 72 provides two separate standards for review of a magistrate judge's rulings depending on whether the ruling is dispositive or non-dispositive. “To determine whether a referred motion for sanctions is dispositive or non-dispositive, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs the determination of whether [Federal Rule of Civil Procedure] 72(a) or 72(b) applies.” Siegel v. Compass Bank, 2021 WL 4498914, at *1 (N.D. Tex. Jan. 11, 2021) (internal quotations omitted) (“To allow otherwise would permit the party seeking sanctions to engage in a game of labels that would improperly dictate the standard of review.”); accord Jim S. Adler, P.C. v. McNeil Consultants, LLC, 2023 WL 2699511, at *14 n.8 (collecting cases) (N.D. Tex. Feb. 15, 2023). In the instant case, the magistrate judge has imposed a sanction that is non-dispositive, because it does not result in the dismissal of plaintiff's suit. Thus Federal Rule 72(b) applies. Therefore, the court's task is to determine whether the findings of the magistrate judge challenged in the parties' objections are “clearly erroneous” or “contrary to law.” FED. R. CIV. P. 72(a).

*2 “Review under the clearly erroneous standard is significantly deferential, requiring a definite and firm conviction that a mistake has been committed.” Concrete Pipe & Prod. v. Constr. Laborers Pension Trust, 508 U.S. 602, 623 (1993) (quotation omitted). This deference extends to the magistrate judge's credibility determinations. Thus, even in cases involving the magistrate judge's resolution of a dispositive motion, “the district court need not re-hear testimony from the ... hearing; its deference to the magistrate's credibility determinations is appropriate when they are supported by the record.” United States v. Gibbs, 421 F.3d 352, 357 (5th Cir. 2005) (suppression hearing); see also, Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Cir. 1980) (“One of the most important principles in our judicial system is the deference given to the finder of fact who hears the live testimony of witnesses because of his opportunity to judge the credibility of those witnesses.”).

APPLICABLE LAW

“Spoliation is the destruction or the significant and meaningful alteration of evidence.” Eagan v. Walgreen Co., 2022 WL 683636, at *3 (5th Cir. Mar. 8, 2022) (citing Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) (internal quotations omitted). Federal Rule of Civil Procedure 37(e) governs the spoliation of electronically stored information (“ESI”). Under that rule:

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.

FED. R. CIV. P. 37(e).

Thus, absent proof of an intent to deprive another party of ESI, prejudice to the other party must be found to warrant relief, which must be no harsher than necessary to cure the prejudice. FED. R. CIV. P. 37(e)(1). Where an intent to deprive, i.e., bad faith, is proved, a court may presume the lost information was unfavorable to the spoliator, provide an adverse inference instruction to the jury, or in extreme cases, dismiss the case or enter a default judgment. FED. R. CIV. P. 37(e)(2). “Bad faith, in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence.” Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). “Subdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information.” FED. R. CIV. P. 37(e)(2) advisory committee's note (2015); see also, Falkins v. Goings, 2022 WL 17414295, at *3 (E.D. La. Dec. 5, 2022) (Barbier, J.).

DISCUSSION

I. Kellar's Objections

Plaintiff's objections are twofold – that plaintiff's actions establish that he did not act with intent to deprive UPRR of meaningful evidence, and that UPRR failed to establish prejudice. It is undisputed that plaintiff had a duty to preserve evidence (which the magistrate judge determined attached in May 2021), that his attorneys informed him of it, and that cell phone data from the relevant time period were deleted by the plaintiff. Plaintiff also objects to the imposition of fees and costs under Federal Rule 37(e)(1).

A. Intent

The evidence in this case (which is essentially undisputed) establishes that Kellar engaged in at least three separate deletions on his cell phone: (1) a factory reset of the phone three weeks prior to filing suit; (2) deleting information (including location information) from his Google account on March 8, 2023, the day after meeting with his attorneys; and (3) deleting information related to his use of applications during the period spanning January 17, 2021 through June 22, 2023. A threshold question is whether the deletions were intentional. The magistrate judge determined that they were intentional. As set forth below, this finding was not clearly erroneous or contrary to law.

1. The factory (hard) reset

*3 Evidence adduced in the proceedings before the magistrate judge reflect that when produced, it was determined that Kellar's cell phone data spanning the period from June 2, 2020 to October 14, 2021 had been deleted. When confronted with the fact that this data was missing, Kellar averred, in a sworn affidavit under penalty of perjury, that the data was removed by a factory or hard reset performed by UBREAKIFIX, when he brought it into their shop on October 15, 2021 to repair a malfunction known as a “green screen.”[1] A factory or hard reset means that the cell phone was restored to its original system state by erasing all data, settings, and applications that were previously stored on the device. Subsequently, forensic evidence supplied by forensic expert Spencer McInvaille revealed that UBREAKIFIX had not performed a hard reset, and in fact, the hard reset eliminating all the data was performed at Kellar's house in Baton Rouge Louisiana on October 14, 2021, at roughly 10:39 p.m., the day before the phone was brought to be repaired.[2] Suit was filed approximately two weeks later on November 5, 2021. When confronted with the evidence contradicting his prior sworn statement, Kellar claimed that the hard reset (and data destruction) was done inadvertently by him when he was attempting to fix the “green screen” himself.[3]

On these facts, the magistrate judge found that “[t]he evidence unequivocally illustrates that Kellar took it upon himself to do a hard reset and lied about it.”[4] She found that “[i]n fact, Kellar lied not once but three (3) times.”[5] She concluded that “Kellar's suggestion that UBREAKIFIX performed a factory reset on his Phone is patently false. In fact, UBREAKIFIX did not delete any information on Kellar's Phone. See R. Doc. 99-4. UBREAKIFIX further confirmed that they did not perform a factory reset, instead Kellar did so.”[6]

The court agrees with the magistrate judge that the evidence in this case indicates that Kellar intentionally deleted ESI when he performed a hard reset on October 14, 2021, and that he lied about it. The magistrate judge's finding of an intent to deprive UPRR of the ESI is not clearly erroneous or contrary to law.

2. March 8, 2023 Location History deletion and other application deletions

McInvaille also testified that on March 8, 2023, the day after Kellar met with his attorneys, location history data was deleted from Kellar's cell phone.[7] This deletion did not involve simply deleting information stored on the device, but logging into Kellar's Google account, accessing the “Location History”, and deleting data from there. The Google data report introduced at the hearing reflects fairly intense activity on Kellar's phone on January 14th through 16th, but no data for the 17th, the date of the accident, suggesting that evidence of the activity was deleted.[8] Kellar did not provide his phone to his attorney until June 22, 2023, after the deletions occurred.[9]

McInvaille further testified that a gap exists in Kellar's Facebook texts and messages, from August 12, 2020 to February 12, 2021, a couple of weeks after the accident.[10] On January 17, 2021, Kellar posted two pictures to Facebook while he was working his shift at UP. However, data provided by Google showed no Facebook activity that day.[11] The obvious inference is that the Facebook posts containing the pictures were deleted. Finally, McInvaille testified that between January 17, 2021 and June 22, 2023, Kellar deleted numerous applications (“apps”) from his phone, including Instagram. These deletions would have resulted in the deletion of messages and pictures associated with the deleted apps.[12]

*4 Based on the foregoing, the magistrate judge concluded:

The Court therefore finds that Kellar purposely deleted cellphone data evidencing his use on the day of the accident and that he intended to delete or spoliate evidence in violation of Rule 37(e). The Court further finds that while Kellar's attorneys breached their duty to preserve, they played no role in the spoliation of the evidence. In fact, it is undisputed that they repeatedly reminded Kellar of his duty to preserve evidence. Finally, the Court finds that despite Kellar's knowledge of his duty to preserve, he actively took steps to delete the data on his Phone and feign ignorance.[13]

This court has reviewed in their entirety the transcripts of the hearings in this case, and finds that they comport with the magistrate judge's characterization of the evidence. The court further finds that the magistrate judge's finding that Kellar intentionally deleted ESI to deprive UPRR of the ESI is not clearly erroneous or contrary to law.

B. Prejudice

Because the ESI deletions in this case were intentional, “[s]ubdivision (e)(2) does not include a requirement that the court find prejudice to the party deprived of the information.” FED. R. CIV. P. 37(e)(2) advisory committee's note (2015); Falkins, 2022 WL 17414295, at 3. Nevertheless, Kellar argues that UPRR suffered no prejudice and is not entitled to sanctions because UPRR possesses relevant geolocation data regarding his cell phone at the time of the collision. Data provided data from Google demonstrates that close in time to the accident, Kellar's phone was “tilting”, i.e., it had been handled in a way which left it in an upright position.[14] Kellar contends that given this, there is no need for further data that might have been deleted.

If Kellar demonstrates that the alleged HOS violation occurred, under FELA, “[a] railroad's violation of a safety statute ... is negligence per se.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 704 (citing Kernan v. American Dredging Co., 355 U.S. 426, 438 (1958)). “ ‘In a FELA action, the violation of a statute or regulation ... automatically constitutes a breach of the employer's duty and negligence per se and will result in liability if the violation contributed in fact to the plaintiff injury.’ ” Richardson v. BNSF Ry. Co., 2014 WL 347047, at *3 (E.D. La. Jan. 28, 2014) (quoting Schmitz v. Canadian Pacific Railway Company, 454 F.3d 678, 682-83 (7th Cir. 2006) (other citations omitted)). Therefore, as pointed out by defense counsel, UPRR's main defense to this action is based on causation. While the deleted evidence may indicate that Kellar was handling his phone at the time of the accident, it could also indicate that it was positioned upright in his cup holder. The deleted ESI could well have shed light on exactly what Kellar was doing with the phone in the moments leading up to the accident, and its deletion does hinder UPRR's ability to establish the true cause of the accident. Accordingly, the court finds that in addition to the presumption of prejudice under section (e)(2), prejudice is actually present in the form of limiting UPRR's ability to establish the true cause of the accident.

*5 The magistrate judge found that the loss of the cell phone data does not entirely prevent UPRR from defending the case as pleaded.[15] She concluded that dismissing Kellar's claim was not necessary, but that an adverse inference would suffice. Specifically, she recommended that this court instruct the jury to infer that Kellar intentionally deleted data from his phone shortly before the lawsuit was filed and during the case, and that the deleted data would have been unfavorable to him. The undersigned agrees that this sanction is proportional and appropriate.

II. UPRR's Objection

UPRR's sole objection goes to the adequacy of the remedy. UPRR claims that it cannot defend the claims without the deleted ESI, and thus that the only adequate sanction is termination of the suit. As noted above, the magistrate judge concluded that despite the loss of the ESI, UPRR could defend the case as pleaded, and the adverse inference was an appropriate sanction. The court agrees that the spoliation of ESI does not entirely prevent UPRR from defending plaintiff's claims against it, and that the curative measures set forth above are appropriate. Accordingly, UPRR's objection is overruled.

III. Attorneys' Fees

Courts routinely award attorney's fees and expenses under Rule 37(e), to cover the time and effort necessary to bring the issue of spoliation before the court. Balance CXI, Inc. v. Int'l Consulting & Rsch. Grp., LLC, 2020 WL 6886258, at *15 (W.D. Tex. Nov. 24, 2020) (footnote omitted), rep. & rec. adopted, 2021 WL 2194900 (W.D. Tex. Feb. 3, 2021); accord Jim S. Adler, P.C. v. McNeil Consultants, LLC, 2023 WL*10 & n.1.The magistrate judge recommended that Kellar pay the reasonable expenses, including attorney's fees and costs, that UPRR incurred as a result of his failure to preserve ESI from his cell phone. In his objections, plaintiff contends that absent a jury finding that ESI data was lost with intent to deprive UPRR, the request for fees and expenses should be denied or deferred. Because in the instant Order and Reasons the undersigned concludes that Kellar intentionally destroyed the ESI, this argument is unavailing. Objections to the magistrate judge's recommendation that Kellar pay UPRR's reasonable expenses, including attorney's fees and costs pursuant to Rule 37e(1), are overruled.

CONCLUSION

IT IS HEREBY ORDERED that the plaintiff's Objections (Rec. Doc. 111) are OVERRULED;

IT IS FURTHER ORDERED that defendant's Objections (Rec. Doc. 112) are OVERRULED.

New Orleans, Louisiana, this 17th day of October, 2024.

Footnotes

[1]

Kellar Aff., Rec. Doc. 84-10.

[2]

Spencer McInvaille Transcr., Rec. Doc. 103, 12-13.

[3]

Digital forensics examiner Benjamin Bierce described the hard reset process as follows:

To perform a hard reset, the phone must be turned off and started into recovery mode. Recovery mode is a maintenance function of Android phones used to diagnose and address issues, perform updates, factory resets, or install custom versions of the Android operating system.
To enter recovery mode and perform a reset on a Samsung phone, the following actions must be performed:
Turn off the device.
Press and hold the Volume Up and the Power button simultaneously until the Samsung logo appears.
Release all buttons when the device vibrates once, and the Android recovery mode menu will appear.
Use the Volume Up/Down buttons to select Wipe data/factory reset and select with power button.
Select Factory data reset.
The screen will show Data wipe complete.
Select Reboot system now.
The phone will boot to the setup screen as if it were a new phone.

Bierce Decl., Rec. Doc. 73-5, 6. It is difficult to understand how this process could be accomplished inadvertently.

[4]

Report & Recommendation, Rec. Doc. 110, 28.

[5]

Id.

[6]

Id. at 24.

[7]

McInvaille Transcr., Rec. Doc. 103, 22.

[8]

Id. at 32-34.

[9]