Sunday, May 31, 2015

Risk v. Reward

The Montana Supreme Court has reversed and remanded with spoilation sanctions a verdict in favor of defendant BNSF Railway based on its failure to preserve a video of the accident of an employee plaintiff.

BNSF is a seasoned and sophisticated corporate litigant well aware of its obligations when responding to workplace violations and employee injuries and accidents. These obligations include the retention of evidence relevant to injury claims. In this case, BNSF supervisors took immediate action within minutes of Spotted Horse’s alleged accident. While Price drove Spotted Horse to the hospital for medical treatment, BNSF supervisors began gathering and analyzing information related to the incident. Within hours of the alleged accident, according to testimony, three individuals viewed a brief portion of the video footage from one camera in the shop stall where Spotted Horse and Syverson were apparently working. And yet–inexplicably–this and other video footage from the shop was not retained...

We reject the notion that BNSF is entitled to unilaterally determine which evidence is relevant or valuable when investigating an alleged work-related accident preceding litigation. Such a decision must be left to the trial court.

Justice Wheat would order default

I agree with the Court’s decision to reverse the judgment of the District Court and to order more serious spoliation sanctions against BNSF on remand. I would, however, remand to the District Court with an instruction to enter default judgment, because the audacity of the spoliation in this case warrants more than a mere negative inference in favor of Spotted Horse...

Montana courts should not shrink from granting default judgment where, as here, spoliation is willful, in bad faith, or knowingly committed in order to obscure the truth and to prevent accurate decision making. By failing to take such action when it is warranted, we fail the spoliation victim and our system of justice, while at the same time rewarding the spoliator with the result he or she sought: an advantage in litigation. By failing to take such action, we set the stage with perverse incentives and encourage further spoliation. Until we are willing to respond with sanctions commensurate to the damage caused by intentional spoliation – that is, with default judgment – the reward from destroying evidence will continue to outweigh the risk.

Justice McKinnon dissented and would affirm the trial court's exercise of discretion. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/05/the-montana-supreme-court-has-reversed-and-remanded-with-sanctions-a-verdict-in-favor-of-defendant-bnsf-railway.html

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