Gemza v. ZhaoGemza v. Zhao
OPINION AND ORDER
This is a motor vehicle accident case. It is before the Court on Plaintiff Joel P. Gemza’s Motion to Exclude [Doc. 160], Defendants Decker Truck Line, Inc. (“Decker“) and Iosep L. Israel’s1 Motion for Summary Judgment [Doc. 161], the Plaintiff’s Motion for a Hearing [Doc. 171], and the Plaintiff’s Motion for Sanctions [Doc. 172]. For the reasons set forth below, the Plaintiff’s Motion to Exclude [Doc. 160] is DENIED as moot, the Moving Defendants’ Motion for Summary Judgment [Doc. 161] is GRANTED, the Plaintiff’s Motion for a Hearing is DENIED [Doc. 171], and the Plaintiff’s Motion for Sanctions [Doc. 172] is DENIED.
I. Background2
This case arises out of injuries allegedly caused by a motor vehicle collision. The Plaintiff, Israel, and Defendant Zuan Liang Zhаo were driving tractor-trailers in the right-most lane on I-285 S when the collision occurred. (Pl.’s Statement of Undisputed Material Facts ¶ 1). Of the three, the Plaintiff was driving in the front with Israel behind him and Zhao behind Israel. (Police Report, Doc. 161-2). Dash cam footage from Israel’s tractor-trailer shows the Plaintiff braking. (Dash Cam Video, [Doc. 162], 0:04-0:10). Israеl braked in response and stopped before reaching the Plaintiff’s tractor-trailer. (Id. 0:08-0:12). After coming
II. Legal Standard
Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists, and that the movant is entitled to judgment as a matter of law.
III. Discussion
The Court will stаrt by considering whether any sanctions are appropriate against Defendant Decker. Finding that no sanctions should be imposed, the Court then addresses whether summary judgment is appropriate. Because the Court concludes that summary judgment should be granted to the Moving Defendants, the Court does not analyze thе Plaintiff’s Motion to Exclude.
A. Sanctions
The Court starts by considering whether sanctions are warranted. The Plaintiff argues that the Court should impose sanctions because Decker only retained twenty seconds of dash cam footage and did not preserve the minutes leading up to or immediately after the collision. Becausе this involves the failure to preserve electronically stored information,
Rule 37(e) creates a two-tiered sanctions regime—with lesser sanctions underRule 37(e)(1) and more severe sanctions underRule 37(e)(2) . Both parts of the rule share two preconditions: (1) “electronically stored information that should have been preserved in the anticipation or conduct of litigation” was “lost because a party failed to take reasonable steps to preserve it” and (2) that information “cannot be restored or replaced through additional discovery.” The requirements diverge after that.Rule 37(e)(1) sanctions are centered on the effect of a violation; thеy apply only where lost electronic evidence causes“prejudice to another party,” which then justifies sanctions “no greater than necessary to cure the prejudice.” Rule 37(e)(2) sanctions, on the other hand, look more to the cause of the violation. They require a finding that “the party actеd with the intent to deprive another party of the information‘s use in the litigation.”
Id. at 1311. The burden lies with the party seeking sanctions to establish spoliation. See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F. Supp. 2d 1299, 1308 (N.D. Ga. 2011) (citing Eli Lilly & Co. v. Air Express Int‘l USA, Inc., 615 F.3d 1305, 1318 (11th Cir.2010)).3
Decker argues that it never had an obligation to preserve the video until after it was already deleted. A defendant’s duty to preserve evidence “arises whеn [the defendant] knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of ‘notice’ to the defendant.” Wiedeman v. Canal Ins. Co., 2017 WL 2501753, at *3 (N.D. Ga. June 9, 2017) (quoting Phillips v. Harmon, 297 Ga. 386, 396 (2015)). The Plaintiff asserts three bases for concluding that Decker had notice of potential litigation. None of them are persuаsive.
First, the Plaintiff asserts that Decker had a duty to preserve because Decker said it anticipated making a claim against Zhao’s insurance company. (Pl.’s Br. in Supp. of Mot. for Sanctions, at 15-16). Decker disputes whether there is any evidence that it ever anticipated making a claim against Zhao, (Def.’s Br. in Oрp’n to Mot. for Sanctions, at 11-12), but the Court need not get into that. As Decker notes, this argument depends on an unstated premise that the Plaintiff can wield the duty that Decker owes to Zhao’s insurance company as its own. Several courts within this Circuit have rejected such a “shifting duty” theory of spoliation. See, e.g., In re Delta, 770 F. Supp. 2d at 1307-08; Stanfill v. Talton, 851 F. Supp. 2d 1346, 1364-66 (M.D. Ga. 2012); Point Blank Sols., Inc. v. Toyobo Am., Inc., 2011 WL 1456029, at *24-26 (S.D. Fla. Apr. 5, 2011). The Plaintiff does not point to any contrary authority or any flaw in the reasoning of these cases. Seeing none itself, the Court follows suit.
Second, the Plaintiff contends Decker had a duty by virtue of its internal policies. The Plaintiff does not provide any authority that supports its notion that an internal policy can establish the govеrning duty to preserve. Meanwhile, Decker has provided several cases suggesting the opposite is true, albeit in somewhat different circumstances. See Youngblood v. All Am. Quality Foods, Inc., 338 Ga. App. 817, 821 (2016); Grand Union Co. v. Miller, 232 Ga. App. 857, 862-63 (1998), rev‘d on other grounds, 270 Ga. 537 (1999). Despite the different circumstances, Decker’s cases are in line with the In re Delta court’s statement that, “if [the defendant] owed any document preservation duty to Plaintiffs, it arose only when [the defendant] could have reasonably foreseen civil litigation.” In re Delta, 770 F. Supp. 2d at 1307 (quotation marks omitted). It is the reasonable foreseeability of litigation that creates the duty, not any policy. Of course, the fact that Decker had a general video retention policy has little (if any) beаring on whether it had notice that the Plaintiff was contemplating litigation against Decker. Thus, the Plaintiff does not meet his
Finally, the Plaintiff asserts that Decker had notice as demonstrated by the fact that Decker “initiated an accident review, took Israel’s statement, received photographs, and preservеd minimal video of the collision” and that “Decker is no stranger to lawsuits arising out of commercial vehicle collisions across the continental United States.” (Pl.’s Br. in Supp. of Mot. for Sanctions, at 16). While the Court may consider “what the defendant did or did not do in response to the injury, including the initiation and extent of any internal invеstigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation,” it is also true that “the mere fact that someone is injured, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rulеs of spoliation.” Wiedeman, 2017 WL 2501753, at *3 (quoting Phillips, 297 Ga. at 604). More importantly here, “[t]he defendant‘s duty also does not arise merely because the defendant investigated the incident.” Id. (quoting Phillips, 297 Ga. at 605 n.9). Here, the police report indicated that Israel was the only driver at fault and the only one who received a citation. (Police Report, Doc. 161-2, at 1-2). Mоreover, there was no injury identified in the police report by anyone. (Id. at 3). The Plaintiff points to nothing—other than the mere fact of an investigation—that would give rise to constructive notice that the Plaintiff was contemplating a claim against Decker before Decker deleted any videos. As stated above, that is insufficient.
The Plaintiff therefore has failed to point to anything showing that Decker had notice and a duty to preserve. Concomitantly, the Plaintiff has not met his burden of showing that sanctions are proper in this case, and the Plaintiff’s Motion for Sanctions will be denied accordingly.
B. Summary Judgment
Being that the Court finds that sanctions are not warranted, the Court addresses whether summary judgment should be granted. The Moving Defendants argue that summary judgment is appropriate because there is no evidence that Israel negligently caused the accident. The Court agrees.
The Plaintiff contends that Israel was negligent because he was using the phone right bеfore the accident, as evidenced by a screenshot of a video recording the driver. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at 5-6, 16-17). The Moving Defendants dispute this characterization of the video and point to deposition testimony from Decker’s 30(b)(6) representative, who disagreed with the Plaintiff’s description. (Moving Defs.’ Reply Br. in Supp. of Mot. for Summ. J., at 4-5). The Court need not delve into this dispute of what the video shows because, even if Israel was looking at his phone, the Plaintiff has failed to point to competent evidence indicating that Israel looking at his phone caused the accident in any way. As noted above, the dash cam video shows that Israel came to a complete stop before his tractor-trailer was hit from behind. (Dash Cam Video, Doc. 162, 0:10-0:14). Therefore, regardless of whether Israel was looking at his phone or not, he was still able to stop his vehicle in time to avoid an accident, until Zhao hit him from behind. There is no genuine disputе of material fact that it was the push from behind—and not the phone—that caused Israel to collide with the Plaintiff.4
However, the Plaintiff believes that the Court should not grant summary judgment yet and should order a hearing because “this Honorable Court would benefit greatly from the presentаtion of the telematics data and video evidence which can only be viewed through proprietary software and the standalone event player from SmartDrive, Defendant Decker Truck Line, Inc.’s vendor.” (Pl.’s Br. in Supp. of Mot. for Hearing, at 1). The Plaintiff never describes the contents of this telematics data or vidеo evidence or how they would affect the Court’s analysis.5 The Court will not engage in speculation as to the content or importance of this information and will not order a hearing under Local Rule 7.1(E) based on such a vague description of the information
that the Plaintiff has provided to the Court. Nor does the mention of this information sufficiently rebut the Moving Defendants’ showing of a lack of genuine issue of material fact to warrant denial of summary judgment on the claims of negligence. Since none of the substantive claims
IV. Conclusion
For the foregoing reasons, the Plaintiff’s Motion to Exclude [Doc. 160] is DENIED as moot, the Moving Defendants’ Motion for Summary Judgment [Doc. 161] is GRANTED, the Plaintiff’s Motion for a Hearing is DENIED [Doc. 171], and the Plaintiff’s Motion for Sanctions [Doc. 172] is DENIED.
SO ORDERED, this 10th day of December, 2024.
THOMAS W. THRASH, JR.
United States District Judge