United States District Court, D. Colorado
RICHARD F. TRUJILLO, Plaintiff,
TRIPLE R TRUCKING, LLC, Defendant.
ORDER ON MOTION FOR ADVERSE INFERENCE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on Defendant Triple R Trucking,
LLC's (“Defendant” or “Triple R”)
Motion for Adverse Inference Sanction (or
“Motion”), filed November 8, 2018. See
[#35]. This civil action was referred to the undersigned
Magistrate Judge to preside over fully for all purposes.
See [#17]; 28 U.S.C. § 636(c); Fed.R.Civ.P. 73;
D.C.COLO.LCivR 72.2. The court concludes that oral argument
will not materially assist in the resolution of this Motion.
Accordingly, having carefully reviewed the Motion and
associated briefing, the entire docket, and the applicable
case law, the court DENIES the Motion for
Adverse Inference Sanction for the reasons stated herein.
Richard Trujillo (“Plaintiff” or “Mr.
Trujillo”) initiated this action in the County of Park
District Court on or about February 7, 2018, and Defendant
removed this action to this District pursuant to 28 U.S.C.
§ 1332 on March 27, 2018. See [#1; #5].
Plaintiff alleges that while driving southbound on Colorado
highway 285, he approached a construction zone that had
halted southbound traffic. See [#5 at ¶¶
5-6]. At this same time, an employee of Triple R was driving
a Triple R owned and operated eighteen-wheeler truck
southbound on Colorado highway 285. See
[id. at ¶ 7]. Plaintiff alleges that
Defendant's employee driving the eighteen-wheeler truck
fell asleep at the wheel and collided with the rear-end of
Mr. Trujillo's car, resulting in property damage and
personal injuries to Mr. Trujillo. See [id.
at ¶¶ 8-9]. Because of the traffic collision,
Plaintiff filed suit against Triple R, asserting claims for
respondeat superior liability based on the employee's
negligence, negligent hiring, retention, and supervision, as
well as negligent entrustment. See generally [#5].
Mr. Trujillo has since dismissed his claims for negligent
hiring, retention, and supervision and negligent entrustment
because Defendant concedes that the employee was acting
within the scope of his employment with Triple R at the time
of the accident, leaving only his respondeat superior claim.
See [#29; #31].
Parties proceeded with discovery according to the entered
Scheduling Order, see [#20], albeit with several
extensions of time to designate affirmative and rebuttal
experts and a recent extension to complete depositions of Mr.
Trujillo's experts out-of-time, e.g., [#22; #26;
#28; #39]. Because neither party moved for summary judgment,
Mr. Trujillo's respondeat superior claim appears to be
proceeding to trial, and a Final Pretrial Conference is set
for February 8, 2019. See [#20]. Defendant filed the
instant Motion on November 8, 2018,  asserting that Mr. Trujillo
failed to preserve and/or destroyed his car's bumper and
right taillight that Defendant's employee allegedly
damaged in the traffic collision and which Plaintiff then
repaired. See [#35 at 1-2; #37 at 1-3]. Triple R
contends that the bumper and right taillight are critical to
the issue and nature of Mr. Trujillo's claimed damages,
and therefore Triple R seeks an adverse jury instruction
under Colorado Jury Instruction, Civil 3:13 so that the jury
may draw the inference that Mr. Trujillo lost or destroyed
evidence because it was unfavorable to him. See [#35
at 3-6; #37 at 2-4]. Mr. Trujillo opposes the requested
relief, arguing that the issue is not yet ripe because the
court has not set this matter for trial, but if it is ripe,
Defendant fails to demonstrate that Mr. Trujillo knew or
should have known of the need to preserve the evidence.
See [#36 at 1-3]. Because the Motion is ripe, I
consider the Parties' arguments below.
Federal Rules of Civil Procedure provide for discovery
procedures that seek to further the interests of justice by
minimizing surprise at trial and ensuring wide-ranging
discovery of information. Cache La Poudre Feeds, LLC v.
Land O'Lakes, Inc., 244 F.R.D. 614, 619 (D. Colo.
2007). To protect each party's ability to participate in
meaningful discovery, putative litigants have a duty to
preserve materials that may be relevant to pending or
imminent litigation. See Id. at 620.
“Spoliation is the destruction or significant
alteration of evidence, or failure to preserve property for
another's use as evidence in pending or reasonably
foreseeable litigation.” Giblin v. Sliemers,
147 F.Supp.3d 1207, 1214 (D. Colo. 2015) (internal quotation
marks omitted). Rule 37 of the Federal Rules of Civil
Procedure provides sanctions for the destruction or loss of
evidence. E.E.O.C. v. Dillon Cos., Inc., 839
F.Supp.2d 1141, 1144 (D. Colo. 2011). The court has
discretion to impose sanctions under Rule 37 for abuse of
discovery and “inherent power to impose sanctions for
the destruction or loss of evidence.” Zbylski v.
Douglas Cty. Sch. Dist., 154 F.Supp.3d 1146, 1158-59 (D.
Colo. 2015); Fed.R.Civ.P. 37(c)(1).
spoliation sanction is proper where: (1) a party has a duty
to preserve evidence because it knew, or should have known,
that litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence.”
Jones v. Norton, 809 F.3d 564, 580 (10th Cir. 2015)
(internal quotation marks omitted). Further, “courts
require evidence of intentional destruction or bad faith
before a litigant is entitled to a spoliation
instruction.” Henning v. Union Pac. R.R. Co.,
530 F.3d 1206, 1220 (10th Cir. 2008) (“An adverse
inference is a powerful sanction as it brands one party as a
bad actor and necessarily opens the door to a certain degree
of speculation by the jury” (internal quotation marks
and citation omitted)). This is because the bad faith
destruction of material “relevant to proof of an issue
at trial gives rise to an inference that production of the
document would have been unfavorable to the party responsible
for its destruction.” Aramburu v. Boeing Co.,
112 F.3d 1398, 1407 (10th Cir. 1997) (“Mere negligence
in losing or destroying records is not enough because it does
not support an inference of consciousness of a weak
case”). The court has the discretion to impose a lesser
sanction based on the culpability of the destructing party.
See Estate of Trentadue ex rel. Aguilar v. United
States, 397 F.3d 840, 862 (10th Cir. 2005)
R first argues that Mr. Trujillo knew or should have known
that litigation was imminent such that he had a duty to
preserve the damaged bumper and right taillight. See
[#35 at 4-6; #37 at 1-4]. Mr. Trujillo counters that he had
no duty to preserve the bumper and right taillight, because
he did not file suit until approximately two years after the
repairs at issue and he was not on notice that he was
required to preserve this evidence as he did not have an
attorney and Defendant did not request that he preserve it.
See [#36 at 1-2]. Respectfully, I conclude that Mr.
Trujillo had a duty to preserve the bumper and right
axiomatic that the filing of a lawsuit triggers a duty to
preserve; however, this obligation may arise earlier if a
party has notice that future litigation is likely. See
Estate of Vallina v. Cty. of Teller Sheriff's
Office, No. 15-CV-01802-RM-STV, 2017 WL 1154032, at *5
(D. Colo. Mar. 28, 2017). That is, “a party's duty
to preserve arises when it has notice that the documents [or
other evidence] might be relevant to a reasonably-defined
future litigation.” Zbylski, 154 F.Supp.3d at
1164. This determination depends on the facts of the case.
Cache La Poudre, 244 F.R.D. at 621. If such a duty
exists, the inquiry into whether a party has honored its duty
is one of reasonableness under the circumstances. See
Rimkus Consulting Grp., Inc. v. Cammarata, 688 F.Supp.2d
598, 613 (S.D. Tex. 2010).
Trujillo testified at his deposition that he began looking
for an attorney roughly one week after the traffic collision
because his “neck and back [were] hurting.”
[#35-2 at 91:9-13].Mr. Trujillo further testified that he kept
a “summary or diary” of the traffic collision at
first. See [id. at 91:23-92:2]. Thus, it
appears that Mr. Trujillo had notice that evidence concerning
the damage to his personal property might be relevant to a
reasonably-defined action for damages associated with the
traffic collision, regardless of when he ultimately secured
an attorney or filed suit. Cf. Mitcham v. Americold
Logistics, LLC, No. 17-CV-00808-WJM-NYW, 2017 WL
4163359, at *4 (D. Colo. Sept. 20, 2017) (concluding that the
plaintiff's documenting of alleged employment
discrimination in a journal prior to her termination
triggered her duty to preserve that journal despite not
having retained counsel or filing suit until five months
after her termination).
Triple R must demonstrate prejudice resulting from
Plaintiff's despoliation of the bumper and right
taillight. See Burlington N. & Santa Fe Ry. Co. v.
Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). Triple R
argues that Mr. Trujillo's despoliation of the bumper and
right taillight is prejudicial to Triple R because “the
bumper and taillight assembly would conclusively establish
the severity of the crash, and it would allow for a
determination of whether Plaintiff's claimed injuries
would even be conceivable.” [#35 at 6]. Mr. Trujillo
does not address this issue.
considering whether the spoliation was prejudicial, a court
must first determine whether the evidence would be relevant
to an issue at trial.” Giblin, 147 F.Supp.3d
at 1215 (internal quotation marks and citation omitted).
“The burden is on the aggrieved party to establish a
reasonable possibility, based on concrete evidence rather
than a fertile imagination that access to the lost material
would have produced evidence favorable to his cause.”
Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167
F.R.D. 90, 104 (D. Colo. 1996) (internal brackets, citations,
and quotation marks omitted). There is no dispute that
Defendant's employee, Scott Allen Davis, was
“driving within the course and scope of his employment
with Triple R Trucking [when] he made  rear-end contact
with Plaintiff's vehicle.” [#35 at 1]. But evidence
regarding damage to Mr. Trujillo's bumper and right
taillight would be relevant to issues at trial, including
damages. See Davenport v. Cmty. Corr. ...