United States District Court, D. Idaho
ROBERT WILLIAM SHERWOOD and PAMELA LOUISE SHERWOOD, Plaintiffs,
BNSF RAILWAY COMPANY, a Delaware corporation, dba The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.
MEMORANDUM DECISION AND ORDER RE: DEFENDANT'S
OMNIBUS MOTION IN LIMINE (DKT. 182)
Lynn Winmill, U.S. District Court Judge
the Court is Defendant BNSF Railway Company's Motion in
Limine (Dkt. 182). This motion raises various issues,
including plaintiff's intent to present evidence at trial
of BNSF's alleged spoliation of evidence. Otherwise,
BNSF's motion raises 15 discrete issues, some of which
are directly or indirectly related to spoliation. As will be
explained below, the Court is not inclined to impose
discovery sanctions. Otherwise, the Court's rulings on
the related 15 issues are set out below.
14, 2014 Plaintiff Robert Sherwood crashed while riding his
bike over a BNSF railroad crossing on Schweitzer Mountain
Road, just outside Sandpoint, Idaho. Mr. Sherwood alleges
that his front tire lodged in a narrow gap between two cement
panels on the crossing, which cause caused him to be thrown
over his handlebars and onto the pavement.
after the accident, BNSF referred the matter to counsel in
anticipation of a lawsuit. BNSF also inspected the crossing
and documented the gap between the panels by taking
photographs and measurements. A few weeks after that, BNSF
closed the gap. Closing the gap may have involved lifting one
panel, rotating it 180 degrees, and then setting it back
down, although some BNSF employees remember just using pry
bars to slide one panel next to the other, which closed the
gap. See BNSF Motion, Dkt. 182, at 13. Plaintiff
accuses BSNF of “secretly” closing the gap, as
BNSF did not create or preserve any documentation of the
repair. See Response, Dkt. 197, at 4.
also rehabilitated the crossing in November 2014. Counsel
refers to this as a “routine rehabilitation, ”
because it appears that, even before Mr. Sherwood's
accident, the rehabilitation was scheduled for November 2014.
The parties do not describe this rehabilitation in detail,
but it involved repurposing some of the cement panels for use
elsewhere, as well as replacing the ballast, ties, and lags.
BNSF discarded the existing ballast, ties, and lags, which is
the basis for plaintiff's spoliation argument. Plaintiff
says these discarded items could have helped support his
theory that the crossing was in a state of disrepair in July
admits that the ballast, ties, and lags were discarded but
says there is nothing nefarious about this, particularly
given that it had carefully documented the crossing as it
existed in July 2014 by taking photographs and measurements
of the crossing surface. Additionally, BNSF says it was
eventually able to find at least one of the cement panels and
plaintiff ultimately declined to inspect it. Motion,
Dkt. 182, at 8.
also says that even though within weeks of the accident,
plaintiff had an attorney and had developed a theory that a
gap in the crossing caused the accident, he did not ask BNSF
about the possibility of physically inspecting the crossing
in March 2015, when counsel sent an evidence-preservation
letter. Id. at 7. Rather, BNSF says that at that
time, plaintiff's counsel only asked about preserving
documentation related to a physical separation in
the crossing; BNSF was not asked to preserve any physical
components or the condition of the crossing. Id.
responds that BNSF, with its sophisticated claims department
and attorneys, should have known better, even without any
request on his part, and therefore should not have discarded
the ballast, lags, and ties. At a minimum, plaintiff says
BNSF should have photographed and documented the November
2014 rehabilitation as well as the earlier repair that closed
the gap between the cement panels.
has complained about spoliation earlier in this lawsuit. But
he never filed a motion for discovery sanctions, despite
having filed other, successful discovery motions. See,
e.g., May 9, 2018 Order, Dkt. 134 (granting
plaintiff's motion to compel). Instead, he simply weaves
the spoliation argument into various filings in this lawsuit.
In the context of moving to add a claim for punitive damages,
for example, plaintiff argued that “because of
BNSF's spoliation of physical evidence, the jury should
be entitled to draw adverse inferences as to the condition of
the crossing at the time of the crash.” Oct. 17,
2019 Motion Mem., Dkt. 67-1, at 16. The Court declined
to rule on the spoliation issue, pointing out that to seek a
discovery sanction, plaintiff “must do so in a
separate motion and with more context specific to the
discovery process.” Sept. 28, 2018 Order, Dkt.
152, at 10 (emphasis added).
this direction from the Court, plaintiff still did not file a
motion for discovery sanctions. Instead, Mr. Sherwood's
trial submissions show that he has simply worked the
spoliation issue into his trial strategy. He intends to
present spoliation evidence (including, most significantly,
BNSF' destruction of the crossing components in
connection with the November 2014 rehabilitation), and he
also intends to have a railroad expert (Alan Blackwell)
testify as an evidence-preservation expert. Mr. Sherwood
further assumes that, after hearing all this evidence, the
jury will get to decide whether BNSF spoliated evidence, and,
if so, whether to infer that the discarded evidence was
harmful to BNSF. See Plaintiff's Proposed Jury
Instruction No. 7, Dkt. 172-1.
is a discovery offense, so issues surrounding alleged
spoliation should be resolved during discovery - not on the
eve of trial. Plaintiff's tactical choice of sliding an
adverse-inference instruction into his stack of proposed jury
instructions and otherwise waiting in the wings with planned
spoliation evidence is disruptive, particularly when the
Court had previously instructed plaintiff to raise spoliation
in a discovery motion. For this reason alone, the Court could
deny plaintiff's request for an adverse-inference
instruction as untimely. See generally Goodman v. Praxair
Servs., 632 F.Supp.2d 494 (D. Md. 2009) (identifying
factors courts consider in determining whether a spoliation
motion is untimely; generally observing spoliation motions
“should be filed as soon as reasonably possible after
discovery of the facts that underline the motion”);
Permasteelisa CS Corp. v. Airolite Co., LLC, No.
2:06-cv-569, 2008 WL 2491747, at *2-3 (S.D. Ohio June 18,
2008) (spoliation motion filed one week before trial
untimely). Nonetheless, in the interests of resolving this
issue on the merits, the Court will consider the parties'
general, litigants owe an “uncompromising duty to
preserve” what they know or reasonably should know will
be relevant evidence in a pending lawsuit, or one in the
offing, even though no discovery request or order to preserve
evidence has yet been made. Kronisch v. United
States, 150 F.3d 112, 130 (2d Cir. 1998); see
generally Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th
Cir. 1993). A party engages in spoliation as a matter of law
if the party had some notice that the evidence was
potentially relevant to litigation before its destruction.
United States v. Kitsap Physicians Serv., 314 F.3d
995, 1001 (9th Cir. 2002). A finding of bad faith is not
required before a court may impose sanctions for spoliation.
Glover, 6 F.3d at 1329.
seeking sanctions for spoliation thus bears the burden of
establishing that the opposing party (1) destroyed relevant
evidence and (2) had an obligation to preserve the evidence
when it was destroyed or altered. Ryan v. Editions Ltd.
W., Inc., 786 F.3d 754, 766 (9th Cir. 2015). An
obligation to preserve attaches when a party knows or should
reasonably know that the evidence is potentially relevant to
litigation. See Kitsap Physicians Serv., 314 F.3d at
1001. Once such a showing is made, the district court has
inherent discretionary authority to levy sanctions.
Glover, 6 F.3d at 1329.
the Court is not persuaded that BNSF spoliated evidence when
it closed the gap in the weeks following the accident. BNSF
photographed and measured the scene before closing the gap;
the repair itself appears to have been minimal; and the
individuals who participated in the repair were available to
both sides for questioning. It also appears that no physical
components of the crossing were destroyed in this repair. The
Court will therefore decline to impose any discovery sanction
based on BNSF's closing of the gap in the weeks following
the Court does not find that BNSF spoliated evidence in
connection with the November 2014 rehabilitation. Plaintiff
argues that if the condition of a railroad crossing is at
issue in an anticipated lawsuit, and the railroad plans to
extensively rehabilitate that crossing before the lawsuit can
be resolved, then the railroad should know to preserve
evidence of the condition of the crossing as it existed
before the rehabilitation. This would arguably include
keeping the replaced ties, lags, and ballast and making them