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Sherwood v. BNSF Railway Company

United States District Court, D. Idaho

March 1, 2019

BNSF RAILWAY COMPANY, a Delaware corporation, dba The Burlington Northern and Santa Fe Railway Company, and JOHN DOES I through X, Defendants.


          B. Lynn Winmill, U.S. District Court Judge


         Before 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.


         On July 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.

         Shortly 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.

         BNSF 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 2014.

         BNSF 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.[1] Motion, Dkt. 182, at 8.

         BNSF 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.

         Plaintiff 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.

         Plaintiff 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).

         Despite 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.[2] 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.


         A. Spoliation

         Spoliation 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' substantive positions.

         In 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.

         A party 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.

         Here, 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 July 2014.

         Similarly, 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 ...

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