Court Upbraids Railroad for Discovery Abuses

     (CN) – Calling for a new trial in a worker’s negligence case, the Montana Supreme Court called for tougher sanctions against BNSF Railway for destroying surveillance footage of the accident.
     Mark Spotted Horse claims that he became disabled on Sept. 13, 2009, while working as a machinist in BNSF’s diesel shop in Havre, Montana. A co-worker had allegedly been lowering a locomotive engine compartment when the rope slipped through his hands, causing the hatch to strike Spotted Horse’s head.
     Despite the hard hat, Spotted Horse says he suffered headaches and neck pain.
     BNSF operates workplace surveillance cameras 24 hours a day, seven days a week, but the digital recording system automatically overwrites old video footage with new video footage every 15 to 30 days, absent a video-footage request.
     Though Spotted Horse requested copies of the footage in his post-accident interview, and in discovery requests after he sued BNSF in 2010, the railway never referenced or provided video footage.
     A BNSF foreman later testified in deposition that he viewed the footage from one of the cameras after the accident but determined that there was no evidence to preserve because that camera didn’t capture the injury itself.
     Though Spotted Horse demanded default judgment on the basis of discovery abuses, the Cascade County District Court denied the motion.
     A jury ruled for the railway in 2013, but the Montana Supreme Court found 6-1 Friday that Spotted Horse deserves a new trial.
     Calling BNSF “a seasoned and sophisticated corporate litigant well aware of its obligations when responding to workplace violations and employee injuries and accidents,” the court called it inexplicable that the railway failed to retain its video footage from the shop.
     “Although BNSF clearly knows better than to dispose of video footage of an accident scene, it is simply not possible to determine whether the destruction of the evidence was intentional or inadvertent,” Judge Patricia Cotter wrote for the majority. “Given this circumstance, we do not find that District Court’s refusal to grant Spotted Horse’s request for a default judgment was an abuse of discretion. However, we do conclude that the District Court abused its discretion when it declined to impose a meaningful sanction on the railroad, and instead fashioned a ruling that ultimately rewarded rather than punished BNSF for its destruction of evidence.”
     On remand, the trial court must “fashion a sanction that is commensurate with the significance of BNSF’s actions in allowing the video footage to be destroyed, and which will satisfy the remedial and deterrent goals of sanctions for the spoliation of evidence,” Cotter added.
     In a specially concurring opinion, Justice Michael Wheat said “the audacity of the spoliation in this case warrants more than a mere negative inference in favor of Spotted Horse.”
     A more appropriate sanction would be entering default judgment against BNSF, Wheat said.
     Justice Laurie McKinnon meanwhile said in dissent that the reversal goes too far as it is.
     McKinnon called it troubling to “sanction BNSF based not on its conduct in the case before us, but on its alleged prior bad acts in completely unrelated past litigation.”
     She said she would have affirmed the trial court’s judgment.
     BNSF Railway is the second largest freight railroad in North America. Its headquarters are in Fort Worth, Texas.

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