We previously published an article regarding the preservation of Engine Control Module (“ECM’) Data. Louisiana jurisprudence tells us that there is no duty to preserve ECM data simply because an accident occurred. As a reminder, ECM data is data about particular events that happen within a truck while it is being operated, such as sudden deceleration.
Of course, the standards on the duty to preserve can be applied to many types of evidence. As discussed in our previous article, the duty to preserve evidence arises from a statute, contract, relationship between the parties, affirmative agreement, written company procedure, or a timely request from the plaintiff. Further, the Louisiana Supreme Court has held that there is no negligent spoliation of evidence; rather, there can only be intentional destruction of such evidence.
A recent Louisiana Supreme Court decision in Fobb v. Stericycle, Inc., 2023-CC-00697 (La. 9/19/23), dealt with a different kind of evidence called a Vehicle Accident Report (“VAR”). VARs are made by companies following an accident and often contain information regarding the driver’s fault. The Court upheld Louisiana’s same stance on the duty to preserve evidence that we saw with ECM data.
Fobb v. Stericycle, Inc.: Application of the Duty to Preserve Vehicle Accident Reports (VAR)
In Fobb v. Stericycle, Inc., the defendant driver’s employer made a VAR immediately after an accident. The plaintiffs contended that the VAR contained information regarding the driver’s fault. However, in response to discovery demands made by the plaintiffs, the employer produced a supplemental incident report, which did not contain any information regarding its employee’s fault. The plaintiffs filed a spoliation motion, arguing that the employer had intentionally destroyed the original VAR that contained the employee’s fault information.
Both the trial court and appellate court found that the employer had intentionally destroyed the VAR evidence. The appellate court reasoned that the duty to preserve arises when the party in control of the evidence is given notice that the evidence is relevant to the litigation. Thus, the court held that the employer knew that its employee’s fault was a “crucial issue” in the case, and therefore should have preserved the original VAR.
The Fourth Circuit granted a supervisory writ and reversed. The Fourth Circuit noted that, although some of the data was no longer accessible through the employer’s computer system, the evidence of the data had not been destroyed; rather, it was copied and preserved in the supplemental report. Therefore, the plaintiffs had failed to establish that the defendant intentionally destroyed any evidence.
The appellate court in Fobb held that, when an issue is contested during a case, and the party in control of the evidence is aware of such contestation, then that party has a duty to preserve the evidence. Any changes to the original version will constitute intentional destruction of the evidence. However, as pointed out by the Fourth Circuit, the VAR was not destroyed, as it was preserved in another supplemental report (even if it was missing the information on the employee’s fault). Therefore, the evidence of the data contained in the VAR was not destroyed; it was merely copied, which is not sufficient to prove intentional destruction of evidence.
Fobb builds on Louisiana jurisprudence surrounding the duty to preserve. We already know that a party has no duty to preserve ECM data just because an accident happened. After the Fobb decision, we now know that there is no intentional destruction of evidence where the evidence was not actually destroyed, even if the evidence is not preserved in its original form. Thus, we can infer that, even if there are some changes to a piece of evidence when it is presented to the opposing party, it will not constitute intentional destruction of the evidence, and the defendant will not have violated its duty to preserve, if the essential substance of the evidence remains.