2021 WL 4987962
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeal of Louisiana, Fourth Circuit.
Margie HENDRICKS and Myrtis Hendricks Williams
v.
WELLS FARGO INSURANCE, STERICYCLE, INC., Shadrack Long, Ortegas Coleman and Ean Holdings, LLC
NO. 2021-CA-0109
|
October 27, 2021
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, NO. 2018-01575 C\ W 2018-02116, 2018-07267, 2018-08066, DIVISION “N-8”, Honorable Ethel Simms Julien, Judge
Attorneys and Law Firms
Donald Edward McKay, Jr., McNeil Kemmerly, Katie F. Wollfarth, Robert McKnight, LEAKE & ANDERSSON, LLP, 1100 Poydras, Suite 1700, Metairie, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT
Matthew S. Chester, Matthew C. Juneau, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, COUNSEL FOR APPELLEE/SEAN ALFORTISH
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet)
Opinion

Judge Roland L. Belsome

*1 **1 This is an appeal from the trial court’s granting of a motion to quash a pre-trial discovery subpoena directed to a non-party’s cell phone provider. For the reasons that follow, the ruling is affirmed.

Facts
The underlying lawsuit consists of four consolidated personal injury cases filed subsequent to an August 15, 2017 motor vehicle accident between a van and an 18-wheel tractor trailer (hereinafter “2017 accident”). The named defendants that are relevant to this appeal are Shadrack Long, the driver of the tractor trailer, his employer, Stericycle, and its insurer, Greenwich Insurance Company (collectively “the Appellants”) and the driver of the van, Ortegas Coleman. In the course of discovery, the Appellants associated Ortegas Coleman with Cornelius Garrison through phone calls between the men before and after the 2017 accident. Cornelius Garrison had been indicted in federal court for conspiring to fraudulently stage motor vehicle accidents. Further discovery revealed that Cornelius Garrison had been in contact with another cell phone number and Appellants issued a subpoena duces tecum to the cell phone provider, Sprint Spectrum, LP (“Sprint”) **2 requesting two years of records for the specific cell phone number. That subpoena was met with a motion to quash filed on behalf of the owner of the cell phone number, Sean Alfortish.

Additionally, the Appellants filed a motion for leave of court to file supplemental and amending pleadings to assert a reconventional demand against Plaintiffs, a cross-claim against co-defendant Ortegas Coleman, as well as a third-party demand against Cornelius Garrison, alleging that the 2017 accident was fraudulently staged. The pleadings further asserted that the subject accident was part of a wide-ranging conspiracy between the plaintiffs, Ortegas Coleman, and Cornelius Garrison to stage motor vehicle accidents and file personal injury claims against companies operating 18-wheel tractor trailers.

After a hearing, the trial court granted the Appellants’ motion for leave to file the amendment and additional claims. The trial court also granted Sean Alfortish’s motion to quash the subpoena issued to Sprint. This appeal followed.

Discussion
On appeal, the Appellants maintain that the trial court abused its discretion when it granted the motion to quash by placing the burden of proof to show good cause to warrant the discovery on the Appellants or alternatively, by not finding that the Appellants showed good cause to obtain the discovery.1

*2 The subpoena that was issued to Sprint sought cell phone records for the period of July 1, 2017 and January 1, 2019, including but not limited to billing statements, cell sites activations, numbers dialed, and sent and/or received text **3 messages. In response, the motion to quash argued that Sean Alfortish is a non-party to the litigation, is not a witness to the 2017 accident, and has no connection with the facts at issue. Thus, his personal information is irrelevant to this matter and the subpoena should be quashed. Opposing the motion to quash, the Appellants revealed that Sean Alfortish’s cell phone records were sought because his cell phone number appeared numerous times in the cell phone records of Cornelius Garrison. In arguing why that was relevant to this case, the Appellants informed the trial court that Cornelius Garrison had been indicted in a federal court case, United States v. Garrison (“the Indictment”).2 The Indictment alleged that Cornelius Garrison had been involved in staging as many as fifty accidents with 18-wheel tractor trailers with “Co-Conspirator A.” The Appellants further revealed that Cornelius Garrison had been in contact with the driver in this case Ortegas Coleman several times before and after the 2017 accident including several calls the day of that accident. The record supports those facts.

Next, the Appellants suggest that even though Sean Alfortish had no contact with Ortegas Coleman at any time, and no contact with Cornelius Garrison on the date of the 2017 accident, he was “Co-Conspirator A.” That assertion was based on news outlets’ reporting but has not been substantiated. Sean Alfortish has not been named in the Indictment. So, although Appellants were able to connect Ortegas Coleman to Cornelius Garrison, none of the evidence presented establishes a connection between Sean Alfortish and Ortegas Coleman or any plaintiff in this case.

Generally, a party may obtain discovery of any information which is relevant to the subject matter involved in the pending action. There are limitations **4 to this rule, however, when justice requires that a party or other person be protected from annoyance, embarrassment, oppression, or undue burden or expense. Stolzle v. Safety & Systems Assur. Consultants, Inc., 2002-1197, p.2 (La. 5/24/02), 819 So. 2d 287, 289, (citing La. Code Civ. P. Art. 1422. La. Code Civ. P. art. 1426; Laburre v. East Jefferson Gen. Hosp., 555 So. 2d 1381 (La. 1990)). Additionally, a showing of relevancy and good cause for production has been required in Louisiana cases where a party seeks production of records from a non-party. Stolzle, 2002-1197, p.3, 819 So.2d at 289 (citing Ouachita Nat’l Bnk in Monroe v. Palowsky, 554 So.2d 108 (La.App. 2d Cir. 1989)); see St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 2014-0286, p. 5 (La.App. 4 Cir. 8/27/14), 147 So.3d 1266, 1268.

Further, La. C.C.P. Art. 1426 provides in pertinent part:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had.
Prior to ordering discovery from a third party, which has invoked its right to be protected, the trial court must be convinced of the relevancy and necessity of such discovery in achieving its intended purpose. Channelside Services., LLC v. Chrysochoos Group, Inc., 2015-0064, p. 19 (La. App. 4 Cir. 5/13/16), 194 So. 3d 751, 762. A trial court’s regulation of pre-trial discovery is afforded broad discretion and will not be reversed by an appellate court in the absence of a clear abuse of discretion. Channelside, 2015-0064, p.8, 194 So.3d at 756 (citing **5 Sercovish v. Sercovich, 2011-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600, 603).

In Stolzle, supra, the trial court considered requests for production which, although directed to a party, concerned the personal information of non-parties, including credit card receipts, telephone bills, cellular telephone bills, fax changes, travel ledgers, gas receipts, car rental receipts, airline receipts, and lodging receipts. Stolzle, 2002-1197, p. 3, 819 So.2d at 289. Although the trial court denied a motion for protective order, the Louisiana Supreme Court vacated and set aside the trial court order and remanded the matter back to the trial court to grant the protective order. Stolzle, 2002-1197, p. 4, 819 So.2d at 290. The Court noted, “The trial court failed to determine whether Mr. Stolzle has made a showing of good cause, nor did it make a finding he could not discover this information in a less intrusive manner.” Stolzle, 2002-1197, p. 3, 819 So.2d at 289.

*3 In addition, this Court in St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., L.L.C., extended protection to a non-party with respect to information and documents not necessary to determine the issues in dispute. In that expropriation suit, the plaintiff issued a trial subpoena and subpoena duces tecum non-parties to obtain a property valuation report, documents associated with the report, and testimony regarding the report and documents. St. Bernard Port, 14-0286, p. 2, 147 So.3d at 1267. The trial court granted a motion to compel and denied a motion to quash. This Court reversed, finding that the trial court abused its discretion because St. Bernard Port failed to make a showing of good cause. This Court further stated that St. Bernard Port had not shown that the report was necessary to establish the value of the Violet Dock Port property in the expropriation action. Id.

**6 Stolzle and St. Bernard Port demonstrate that the party seeking discovery from a non-party must show good cause or the subpoena will be quashed. Federal cases specifically addressing motions to quash subpoenas for cell phone records Winter v. Bisso Marine Co., Inc., 13-CV-5191, 2014 WL 3778833, (E.D. La. July 29, 2014) and Scott v. Complete Logistical Services, LLC, No. 19-CV-11672, 2021 WL 2402161 (E.D. La. June 11, 2021), are guidance for this Court on the issue. In Winter, defendant Bisso issued a subpoena duces tecum to Verizon Wireless, plaintiff’s cell phone provider, seeking all records related to plaintiff’s cell phone number, including billing and usage charges, and all logs of incoming and outgoing calls and texts, and data transfers for a specified period of time. Winter, 2014 WL 3778833, at *1. Bisso asserted that the records would reveal information relevant to the plaintiff’s claim that the accident caused him to have ongoing mental and physical problems. Id. The plaintiff moved to quash the subpoena, arguing that it was overly broad, unduly burdensome and sought irrelevant and possibly privileged materials and was not reasonably calculated to lead to the discovery of admissible evidence. The district court granted the motion to quash, finding Bisso’s arguments too tenuous to support a finding that the requested records were relevant. Id.

In Scott, a more recent federal decision, the plaintiff, Joseph Scott filed a seaman complaint after sustaining injuries when a crane fell on his shoulder. Scott, 2021 WL 2402161, at *1. Thereafter, defendants filed a subpoena for the production of two years of Scott’s cell phone records for the purpose of establishing that Scott was exaggerating his injuries. Scott filed a motion to quash the subpoena claiming the subpoena was unreasonable and a fishing expedition that was an invasion of privacy. Id. Relying on Winter, the district court reasoned **7 that the subpoena was not proportional to the needs of the case. Scott, 2021 WL 2402161, at *3. Both cases acknowledged an individual’s reasonable expectation of privacy in the electronic contents of a cell phone.

In Winter and Scott, the defendants sought the cell phone records of a party plaintiff to obtain information to bolster their defense against the plaintiff’s claims. The district court in both cases found that the defendants failed to establish good cause. Here, the Appellants rely on speculation and conjecture in asserting that Sean Alfortish’s cell phone records will support their claims of fraud in this case. The trial court provided the following oral reasons for quashing the subpoena:
Mr. Alfortish is not a party. He’s not an attorney in this case. I believe before you can get his telephone records, you need to get something more. So, for that reason I’m going to grant the motion to quash a subpoena for Mr. Alfortish’s telephone records.

*4 Given the record and applicable law, this Court does not find that the trial court abused its vast discretion in this matter. Accordingly, the ruling of the trial court to quash the subpoena is affirmed.

AFFIRMED

All Citations
— So.3d —-, 2021 WL 4987962, 2021-0109 (La.App. 4 Cir. 10/27/21)

Footnotes

1
Appellants also challenge, for the first time on appeal, Sean Alfortish’s standing in this case claiming he failed to prove ownership of the cell phone number. However, the record indicates that the Appellants’ opposition to the motion to quash declared that Sean Alfortish’s ownership was judicially confessed. See, C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003, p. 5 (La. 12/3/03), 861 So.2d 156, 159 (“A judicial confession has the effect of waiving evidence as to the subject of the admission”).

2
No. 2:20-CR-00092, 2020 WL 7768180 (E.D. La. 2020).

2021 WL 5114936

Court of Appeals of Georgia.
COWAN SYSTEMS, LLC.
v.
COLLIER.
A21A1697
|
November 3, 2021
Attorneys and Law Firms
John David Dixon, Atlanta, Jason Shawn Stewart, for Appellant.
Jonathan Peter Hayes, Atlanta, for Appellee.
Opinion

Markle, Judge.

*1 After Larry Collier was injured when one of Cowan Systems, LLC’s truck drivers struck his vehicle, Collier sued Cowan and the driver, James Anderson, and requested that they preserve evidence created by a tracking device on the truck. When Cowan could not produce the data because it had not been preserved, Collier requested a spoliation sanction. The trial court granted the motion and determined that it would instruct the jury that Anderson had been speeding and was in violation of hours of service regulations at the time of the accident; that Anderson had a pattern and practice of these behaviors; and that Cowan was aware of these violations. The trial court certified its order for immediate review, and we granted the interlocutory application. Cowan now appeals, arguing that the sanction imposed was unsupported by the trial court’s findings. For the reasons that follow, we vacate the order awarding the presumptive jury instruction as a sanction, and remand the case for further proceedings.

“A trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse. Where a trial court makes findings of fact in ruling on a spoliation claim, this Court will uphold those findings if there is any evidence to support them, i.e., unless they are clearly erroneous.” (Citation and punctuation omitted.) Reid v. Waste Indus. USA, 345 Ga. App. 236, 245 (6), 812 S.E.2d 582 (2018); see also Phillips v. Harmon, 297 Ga. 386, 397 (II), 774 S.E.2d 596 (2015). When the trial court imposes a sanction that is inconsistent with its factual findings, the trial court abuses its discretion. Anthem Cos. v. Wills, 305 Ga. 313, 316-317 (2), 823 S.E.2d 781 (2019).

So viewed, the record shows that Collier was driving to work in the early morning hours in July 2017 when he struck a deer that had entered the roadway. Anderson, who was a commercial truck driver for Cowan, was traveling behind Collier, and he struck the left rear side of Collier’s car. Collier was injured when his car landed in a ditch. Collier believed Anderson was speeding and following too closely at the time of the accident. Anderson was cited for following too closely.

Four days after the accident, Collier’s attorney sent Cowan a preservation letter, seeking to protect data collected by an OmniTRAC GPS system installed in Anderson’s truck. The tracker collected speed and location data at certain times during the ride, depending on when the tracker “pinged.” This data could have confirmed the tractor-trailer’s speed and location at the time of the accident. Unfortunately, Cowan had only recently started installing the OmniTRAC system in its trucks, and it had not yet established a process for downloading and saving the electronic reports. Thus, when Cowan’s legal staff received the preservation letter, they did not know the tracker was on the truck, nor did they know how to access and save the data. Cowan did preserve other tracking data in its logs that would have shown the truck’s location at the time of the accident, but not its speed.

*2 Collier filed suit against Cowan and Anderson. As to Cowan, Collier argued that it was vicariously liable for Anderson’s speeding and driving in violation of the hours of service regulations applicable to commercial drivers, as well as negligent for the failure to train and supervise him, and for permitting him to drive with the knowledge that he violated the rules of the road and commercial driving regulations. Collier also sought punitive damages.1

Collier then moved to sanction Cowan for spoliation of the electronic OmniTRAC data. He argued that the lost data was important to his claims of speeding and alleged violations of hours in service, as well as to the claim for punitive damages. In its response to the motion for spoliation sanctions, Cowan acknowledged that the data was important to Collier’s case, but noted that some of the data was available from other reports, and it suggested that the trial court prohibit Anderson from testifying as a sanction to cure the prejudice of the lost evidence. Following a hearing, the trial court granted the motion, deciding that it would instruct the jury that Anderson was speeding and had violated time in service regulations at the time of the accident; he had a pattern or practice of speeding and violating time in service regulations; and that Cowan knew this information on the day of the accident. Cowan now appeals.

In related enumerations of error, Cowan argues that the trial court erred in fashioning its sanction because it improperly weighed the relevant factors, and there was no evidence Cowan acted in bad faith or intentionally spoliated the evidence.2 We agree.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citation omitted.) AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1), 667 S.E.2d 150 (2008). Once the trial court determines that spoliation occurred, a fact Cowan does not dispute here, it then considers the following factors in determining the appropriate penalty for spoliation:
(1) whether the party seeking sanctions was prejudiced as a result of the destroyed evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the destroying party acted in good or bad faith; and (5) the potential for abuse if any expert testimony about the destroyed evidence was not excluded.
Creek House Seafood & Grill v. Provatas, 358 Ga. App. 727, –––– (2), 856 S.E.2d 335, 339 (2) (2021); see also MARTA v. Tyler, ––– Ga. App. ––––, 860 S.E.2d 224, 227 (2021).
To remedy the prejudice resulting from evidence spoliation, a trial court is authorized to (1) charge the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator; (2) dismiss the case; or (3) exclude testimony about the evidence. This is not an exhaustive list of sanctions a trial court may impose; rather, the trial court has wide latitude to fashion sanctions on a case-by-case basis, considering what is appropriate and fair under the circumstances.
*3 (Citation and punctuation omitted.) Wal-Mart Stores v. Lee, 290 Ga. App. 541, 545 (1), 659 S.E.2d 905 (2008).

Notably, however, an adverse jury instruction is a severe sanction that is generally appropriate only in response to the intentional destruction of material evidence. Creek House Seafood & Grill, 358 Ga. App. at 731 (2), 856 S.E.2d 335. Instead, “the loss of relevant evidence due to mere negligence normally should result in lesser sanctions, if any at all … because information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have.” (Citations and punctuation omitted.) Id. at 731 (2), 856 S.E.2d 335; see also Anthem Cos., 305 Ga. at 316 (2), 823 S.E.2d 781; Wilkins v. City of Conyers, 347 Ga. App. 469, 473, 819 S.E.2d 885 (2018) (“the trial court may determine in its discretion that severe sanctions, such as an instruction to the jury to presume rebuttably that the evidence was adverse to the spoliating party’s claim or defense, the entry of a default judgment, or the dismissal of the case, are appropriate. Significantly, however, those sanctions are reserved for exceptional cases—namely those in which the party lost or destroyed material evidence intentionally in bad faith and thereby prejudiced the opposing party in an uncurable way.”) (citations and punctuation omitted).

Here, we must conclude that the trial court abused its discretion in imposing the presumptive jury instruction as its sanction. Although the trial court considered the relevant factors, it nevertheless imposed a sanction that was too harsh under the circumstances.

With regard to the first and third factors, there was no question that the evidence was of practical importance to Collier’s claims, and that he was prejudiced by its destruction. Collier’s claims against Cowan arise from Anderson’s speeding and following too closely, and depend on Cowan’s knowledge of Anderson’s conduct. See, e.g., Leo v. Waffle House, 298 Ga. App. 838, 841 (2), 681 S.E.2d 258 (2009) (“[A]n employer may be held liable for negligent supervision only where there is sufficient evidence to establish that the employer reasonably knew or should have known of an employee’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff.”) (citation and punctuation omitted). Additionally, the claim for punitive damages depends on whether Cowan knew that Anderson had a practice of such violations. See Brooks v. Gray, 262 Ga. App. 232, 233 (1), 585 S.E.2d 188 (2003) (“in automobile collision cases, punitive damages are not recoverable where the driver at fault simply violated a rule of the road. To justify punitive damages, we have required that the collision result from a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively.”) (citations and punctuation omitted); see also Bradford v. Xerox Corp., 216 Ga. App. 83, 84, 453 S.E.2d 98 (1994) (no evidence to support punitive damage award in absence of evidence that driver had a history of violations or that company had any reason to question driver’s ability).

*4 The remaining factors, however, do not support the trial court’s sanction. The data that was lost could possibly have captured Anderson’s speed and location at the time of the accident, depending on exactly when the system “pinged” and registered the data. The record shows, however, that there were other means of obtaining evidence of Anderson’s location, and Cowan produced its logs that appear to show Anderson speeding and in violation of hours of service requirements on other occasions. In evaluating whether the prejudice could be cured, the trial court focused on the inability to cross-reference the tracker’s data with the other logs, but, as noted, the logs that were produced showed violations. Additionally, in his deposition, Collier stated that he believed Anderson was speeding and following too closely, and it is likely that he would testify to that at trial, and there is no evidence to rebut that testimony. Thus, the ability to cure – or at least minimize – the prejudice does not weigh in support of the trial court’s harsh sanction. Creek House Seafood & Grill, 358 Ga. App. at –––– (2), 856 S.E.2d at 339 (2)); compare Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758, 764-765 (2), 618 S.E.2d 650 (2005) (trial court properly instructed jury that victim had been raped as sanction for destruction of rape kit in victim’s premises liability case against landlord; finding of rape was not the critical issue in the case and was only one element of the victim’s tort action).

Moreover, with regard to the fourth factor, the trial court expressly found that Cowan did not intentionally destroy the data or act in bad faith. Compare Wal-Mart Stores, 290 Ga. App. at 546 (1), 659 S.E.2d 905 (trial court may impose sanction in form of excluding evidence even if it did not find the defendant acted in bad faith in destroying the evidence). Nevertheless, it imposed a sanction that essentially instructed the jury to find in Collier’s favor. See Pacheco v. Regal Cinemas, 311 Ga. App. 224, 226-227 (1) (b), 715 S.E.2d 728 (2011) (jury instruction that lost evidence is presumed to be harmful to spoliator was appropriate, but facts of case did not warrant instruction that the jury must accept plaintiff’s description of events). Nothing in the court’s order shows that it considered a lesser sanction and found it insufficient under these facts. Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336, 343 (2) (d), 812 S.E.2d 256 (2018) (reserving the harshest spoliation sanctions for those cases involving bad faith and resulting in incurable prejudice); Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 849 (3), 734 S.E.2d 818 (2012) (“a trial court must fashion a remedy appropriate to its findings, and here the trial court relied in significant part on erroneous findings to impose the most extreme sanction”).

The jury instruction the trial court crafted goes beyond simply demonstrating an adverse inference; rather, it instructs the jury that Anderson was speeding at the time of the accident, that he routinely did so, and that Cowan knew of this tendency. This is not one of those “exceptional cases” warranting such a severe sanction. Cooper Tire & Rubber Co., 303 Ga. at 343 (2) (d), 812 S.E.2d 256; see also Pacheco, 311 Ga. App. at 226-227 (1) (b), 715 S.E.2d 728. Accordingly, although the trial court properly found that a spoliation sanction was warranted, it erred in the sanction it imposed. We therefore vacate the sanction imposed, and remand the case for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Barnes, P. J., and Gobeil, J., concur.
All Citations
— S.E.2d —-, 2021 WL 5114936

Footnotes

1
Collier also named as a defendant Cowan’s insurance company, but the trial court later dismissed those claims. Cowan moved for partial summary judgment on the issues of punitive damages and attorney fees, but the trial court denied the motion, and Cowan does not raise this denial as an issue on appeal. Additionally, after answering the complaint, Anderson disappeared and could not be deposed. Collier moved for sanctions against Anderson for his failure to appear for depositions, which the trial court granted. Anderson is not a party to this appeal.

2
Although Cowan contends that Collier sought only the speed data, a review of the motion for sanctions, and the renewed motion, show that Collier sought both speed data and hours of service logs.