The mail comes in like any other day and you sit down to review. Bills, retail advertisements, a bizarre campaign announcement from the local knucklehead running for city council. Keep, toss, burn.

Then your heart sinks. A letter from a law office from some county in the state you forgot even existed. You take a deep breath and open it with a sense of unease. That is when you see that your business is being sued due to an accident involving your employee. Another day in paradise.

Although it can be tempting to put this letter in the “toss” pile, a recent case out of the Western District of Virginia is a cautionary tale to resist this understandable impulse. In the case of Le Doux v. Western Express, Inc., 2023 U.S. Dist. LEXIS 61677, a plaintiff sued a trucking company and its driver for a car accident resulting in injuries. Much like the contents of the letter you opened after setting fire to the glossy, airbrushed solicitation of your local politician claiming she needs your vote to save the squirrels, Plaintiff’s attorney had sent several communications to defense counsel requesting the preservation of evidence related to the collision.

The truck driver, Mr. Worthy, was made aware of these requests which included that he preserve any electronic devices he was using in his cab when the accident occurred. Fast forward to his deposition a couple years later, and plaintiff’s counsel asked him whether he had any such personal devices. After some ducking and weaving – the likes of which would draw the envy of Mike Tyson – the driver eventually acknowledged that he did, in fact, have a personal tablet mounted to his windshield. Further examination revealed that he had gifted the device to his girlfriend a few months after his attorneys had specifically asked him whether he had one. It was discovered that he deleted the data from his tablet before giving it to his girlfriend. Despite forensic effort to recover the missing information, it was clear that it had disappeared into the ethers.

Plaintiff moved the court for sanctions as a result of the missing information which may have contained relevant information regarding the collision. The court utilized a four-part test assessing: 1) whether Worthy had a duty to preserve evidence, 2) whether the electronically stored information (ESI) was lost, 3) whether Worthy failed to take reasonable steps to preserve the ESI, and 4) whether the lost information could not be restored or replaced.

It was determined, under the first requirement, that Worthy had a duty to preserve the data on his personal tablet because he reasonably anticipated litigation and should have known that the data might be relevant to the foreseeable litigation. Plaintiff’s counsel had sent preservation letters and had inquired about the tablet mounted on Worthy’s windshield, to which Worthy confirmed it was his personal tablet.

The second requirement established that except for calendar events’ timestamps, the data on Worthy’s personal tablet was considered lost, as confirmed by a digital forensic analysis that found no data before June 2021.

Under the third requirement, it was determined that Worthy failed to take reasonable steps to preserve his personal tablet’s data. He admitted to deleting the lost data and giving the tablet to his girlfriend. Despite providing the tablet for forensic analysis in 2022, the record did not support Worthy’s reasonable steps to preserve the data, considering his deletion of the data in 2021 and withholding information about the tablet during prior interactions.

Regarding the fourth requirement, it was stated that the lost information could not be restored or replaced. A good-faith effort was made to replace or restore the lost ESI by Plaintiff’s counsel, including inquiries about the tablet and conducting a digital forensic examination, which revealed the irretrievability of the data before June 2021, except for calendar events’ timestamps.

Based on these findings, the Court concluded that spoliation occurred, and Rule 37(e) applied to the lost data on Worthy’s personal tablet. Therefore, the court granted plaintiff’s motion and sanctioned the defendant by instructing the jury that it was permitted, although not required, to presume that the lost data on Worthy’s personal tablet was unfavorable to Worthy.

This ruling acts as a reminder that although it is easy to be complacent regarding the retention of evidence, business owners must be vigilant in preserving all possible evidence related to litigation and work together with their employees to ensure that they are doing the same.

If you would like assistance to ensure that your business is prepared to comply with retention and preservation of evidence requirements in the anticipation of litigation, please contact Mo Sherman (msherman@setlifflaw.com) at (804) 377-1275 or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.