Tuesday, April 7, 2015

Request for Spoliation Sanction Due To Cell Phone Carrier's Destruction of Records Denied

In her recent decision in the case of Barkely v. Douglas, PICS Case No. 15-0390 (C.P. Monroe Jan. 16, 2015 Sibum, J.), Judge Jennifer Harlacher Sibum denied a Plaintiff's request for a spoliation sanction in a motor vehicle accident case relative to the Defendant's cell phone carrier having deleted certain cell phone records as part of its ordinary retention policy.

In denying the Plaintiff's request for a spoliation sanction, the court applied the factors in the case of Schroeder v. PennDOT and Schmid v.  Milwaukee Elec. Tool Corp.:  (1) the degree of fault of the party who destroyed the evidence, (2) the degree of prejudice suffered by the opposing party, and (3) whether a lesser sanction was appropriate.

Here the court found that the Defendant was never in possession of the cell phone records; rather, the cell phone carrier was and the cell phone carrier destroyed the records in the ordinary course of its business.

Judge Sibum also rejected the Plaintiff's contention that the defendant had intentionally withheld information that delayed the Plaintiff's ability to secure the cell phone records.

Although it was indicated that the Defendant initially provided the incorrect name of the cell phone provider in his Answers to Interrogatories, the court noted that the Defendant's cell phone number was noted in the police report which was generated a short time after the accident.  As such, the court found that the Plaintiff had basic information to utilize in an effort to secure the cell phone records prior to their destruction.

I do not have a copy of this decision but one can be secured from the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and paying a small fee.

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