Black Box Blunder Leads to Adverse Inference
Tuesday, October 3, 2017
A plaintiff won an adverse inference during a personal injury trial against CSX. A railroad employee preserved black box data by copying it to his laptop after carefully calibrating the laptop as to time of day. He then uploaded the data from the laptop to a central server by hand. After his laptop crashed, he sent it in to IT where no attempts were made to get the data off the drive.
There were no reported attempts to access the data from the central server for many years. At time of trial, it was discovered that the railroad employee had uploaded 2 of the 3 necessary files, and one file by mistake, making it impossible to retrieve the black box data.
The Honorable Magistrate Judge Marian Payson determined that the defendants had acted with intent to deprive, dismissing assertions that the loss of data was inadvertent. In doing so, the judge rejected a series of arguments, including whether a laptop is tangible or ESI (ESI), whether the attorneys had made a reasonable inquiry (no), whether there was a duty to verify evidence was transferred properly (yes) and whether case ending sanctions were appropriate (No).
Judge Payson’s analysis of the distinction between “intent to deprive” and negligence leaned on the Northern District of Alabama’s Boeing case:
“In Ala. Aircraft Indus., Inc. v. Boeing Co., 2017 WL 930597 (N.D. Ala. 2017), the court held that a party may be found to have acted with an intent to deprive within the meaning of Rule 37(e)(2) where "(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator." Id. at *15 (quoting Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1323 (S.D. Fla. 2010)). Defendants' conduct in this case supports such an inference.”
Practice point: The CSX black box data, requiring three distinct files to load, is more complex than simple Microsoft Office documents. Proprietary systems require an elevated technical understanding and handling. The time to verify “preservation by collection” is very early in the case.
Moody v. CSX Transp., ----F.Supp.3d---, No. 07-CV-6398P, 2017 WL 4173358 (W.D.N.Y. Sept. 21, 2017)