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Filing # 193065518 E-Filed 02/29/2024 06:30:20 PM
IN THE CIRCUIT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR ST. LUCIE COUNTY, FLORIDA CIVIL DIVISION
DESTINY MCLEOD,
Plaintiff,
vs. CASE NO. 2022CA000396
FRANCISCO SANTOS CRESPO;
BRANIF ENTERPRISES, INC.;
RICHARD MICHAEL ANTHONY WYNTER; and
SWIFT TRANSPORTATION CO. OF ARIZONA, LLC
Defendants.
PLAINTIFF’S AMENDED MOTION FOR SANCTIONS
FOR SPOLIATION OF EVIDENCE
Comes now the Plaintiff, DESTINY MCLEOD, by and through undersigned counsel, and
pursuant to Florida Rules of Civil Procedure 1.380, hereby files this Motion for Sanctions and Jury
Instruction for Spoliation of Evidence. In Support thereof, Plaintiff states as follows:
SUMMARY OF ARGUMENT
1 This case derives out of a motor vehicle crash that occurred on July 1, 2021,
involving vehicles operated by DESTINY MCLEOD (hereinafter “Plaintiff’), FRANCISCO
SANTOS CRESPO (hereinafter “Mr. Crespo”), and RICHARD MICHAEL ANTHONY
WYNTER (hereinafter “Mr. Wynter”). Mr. Crespo was operating a truck for BRANIF
ENTERPRISES (hereinafter “BRANIF”). Mr. Wynter was operating the semi-truck for SWIFT
TRANSPORTATION CO (hereinafter “SWIFT”).
2. On July 8, 2021, Plaintiff sent a certified letter requesting Defendant SWIFT, and
driver, Mr. Wynter, preserve all evidence relating to the incident. (EXHIBIT A)
3 On July 15, 2022, Defendant BRANIF served Mr. Wynter Defendant’s First Set of
Interrogatories.
4 In response to Defendants’ Interrogatory #2 inquiring whether Mr. Wynter ever
installed a dashcam or surveillance camera in his truck. Mr. Wynter stated that he installed a
camera in the tractor he was driving on the day of the crash upon receiving the lease. That camera
remained in the vehicle until the time of the crash. He further claims that he mailed the camera
memory card “around June or July of 2021” and never received confirmation of its receipt or
delivery. (EXHIBIT B)
5 In his deposition, Mr. Wynter made several inconsistent and contradicting
statements regarding his dashcam. Mr. Wynter stated that his dashcam failed to record the incident
because there was nobody in front of him, and it only records with motion sensors, so you have to
be tailgating or physically push the button to make the dashcam record. Mr. Wynter said that his
dash camera does not continuously record because it only has a 64-gig memory card and it’s not
enough to record. Mr. Wynter stated that his dashcam records on a loop, so even if the memory is
full, it continues recording over the old stuff. Mr. Wynter said his dashcam is supposed to record
motion events like tailgating and crashes. Mr. Wynter said his dashcam didn’t record because it
fell off the windshield. Mr. Wynter said he is unsure if the dashcam recorded him striking rocks.
Mr. Wynter said he attempted to watch video after the wreck from the app on his phone, but not
the actual dashcam or memory card itself. (WYNTER Deposition Transcript, Page 102, Line 24
— Page 107 - EXHIBIT C)
6. In his deposition, Mr. Wynter said that a lady at SWIFT asked him to send them
the memory card from the dash camera as soon as possible. Mr. Wynter said that the lady at SWIFT
did not specify whether to send the memory card by USPS, UPS, FedEx, or Electronically. Mr.
Wynter said that the lady at SWIFT provided him with a mailing address but did not offer to cover
the cost of shipping. Mr. Wynter said he put the memory card in a regular envelope, did not get a
tracking number for the envelope, and had never lost something in the mail before. Mr. Wynter
said he was never told he could not mail a physical object in the mail. (WYNTER Deposition
Transcript, Pages 108 — 114 and Page 119 - EXHIBIT D)
7
The Plaintiff's Motion to Compel Defendant, Swift Transportation Co. of Arizona,
LLC’s Deposition was granted on February 27, 2024. Plaintiff will supplement this Motion for
Sanctions after taking the deposition of a SWIFT corporate representative responsible for the
investigation and intake of evidence for the incident on July 1, 2021. (EXHIBIT E)
8 The dashcam without the memory card is currently in the possession of counsel for
Mr. Wynter and SWIFT. Neither the camera nor its contents have been made available to the
Plaintiff.
9. The Plaintiff was never able to inspect the memory card from the dashcam installed
on Mr. Wynter’s vehicle nor view any of its recorded contents. The disappearance of Mr. Wynter’s
dashcam memory card resulted in spoliation of critical material evidence in the case including a
video recording of the moments leading up to the subject matter crash, as was as the crash itself.
10. Liability is a central issue in this case. There are multiple crashes, caused by
multiple Defendants, but the degree of liability assignable to each Defendant is in dispute. Under
Florida law, courts shall enter judgment against each party liable on the basis of such party’s
percentage of fault. See §768.81(3), Fla. Stat. (2022).
11. The video recording from Mr. Wynter’s camera would have allowed the jury to
know how much time elapsed between the collisions caused by each Defendant, make
determinations about liability by viewing the severity of impact in this collision, and Mr. Wynter’s
actions leading up to the latter crash. The video could have shown that Mr. Wynter was not paying
attention, following too closely, or that the two collisions are significantly separated in time,
meaning the now-lost video data would be adverse to his liability position. Without this video
evidence the jury is left to rely on Mr. Wynter’s testimony about his actions.
12. Mr. Wynter failed to preserve his camera and lost material evidence after becoming
aware of a potential civil action. The video would have revealed material information about the
incident, specifically as it related to liability. The Plaintiff and BRANIF will be unable to conduct
a thorough and meaningful investigation into the cause of the crash. As a result, Mr. Wynter is
better positioned to use this lack of evidence to his advantage in this lawsuit.
13. Defendant SWIFT, and Counsel for Defendant, have employed a similar abusive
pattern of conduct in discovery on this case and in the past. (EXHIBIT F)
14. Therefore, Mr. Wynter and SWIFT should be sanctioned because 1) he owned and
controlled the camera; 2) he had a duty to preserve the camera; 3) he was put on notice to preserve
this type of evidence, and 4) the video was critical to prove liability in this case. Mr. Wynter’s
pleadings should be stricken due to the nature of the destruction of evidence. In the alternative, the
jury should receive an adverse-inference instruction because the video evidence from Mr. Wynter
was likely damaging to Mr. Wynter’s defense.
MEMORANDUM OF LAW
15. Florida law requires parties to a lawsuit to preserve all evidence which could be
relevant to their cases as soon as litigation is reasonably anticipated. See e.g., Metro Dade County
v. Bermudez, 648 So. 2d 197, 200 (Fla. 1" DCA 1994) (holding that parties to a lawsuit have a
duty to preserve evidence as soon as litigation is anticipated.) Spoliation of evidence is the
negligent or intentional destruction, alteration, or concealment of evidence. See Golden Yachts,
Inc. v. Hall, 920 So. 24 777, 781 (Fla. 4 DCA 2006).
16. The spoliation of critical evidence may trigger sanctions against the offending
party. See, e.g., DeLong vs. A-Top Air Conditioning Co., 710 So. 2d 706 (Fla. 3rd DCA 1998);
Valcin vs. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3rd DCA 1984); Hernandez
vs. Pino, 482 So. 2d 450 (Fla. 3rd DCA 1986). “The goal in spoliation cases is to assure that the
non-spoliator does not bear an unfair burden.” Reed v. Alpha Prof'l Tools, 975 So. 2d 1202, 1204
(Fla. 5th DCA 2008). The imposition of sanctions after the spoliation of evidence is necessary to
place the parties on equal footing and is an attempt to put the aggrieved party in the same position
it would have been in had the evidence not been lost or destroyed. See Id.
17. When spoliation is established, a trial court has the discretion to impose appropriate
sanctions or remedies, and the available sanctions depend on the severity of the wrongful act and
the prejudicial effect to the aggrieved party. For example, when a case involves negligent
spoliation, a court may impose adverse-evidentiary inferences and adverse presumptions during
trial to address the lack of evidence. See Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 346-47
(Fla. 2005). When a case involves intentional spoliation, however, courts often strike pleadings or
enter default judgments. See id.
18. More than one sanction may be imposed by a court for either inadvertent or
intentional conduct in the loss, destruction, or other disposition of evidence material to a case. See
Golden Yachts, 920 So.2d at 780; Am. Hosp. Mgmt. Co. of Minnesota v. Hettiger, 904 So.2d 547
(Fla. 4th DCA 2005); Jost v. Lakeland Re.g Med. Cntr, 844 So.2d 656 (Fla. 2d DCA 2003), Torres
v. Matsushita Elec. Corp., 762 So.2d 1014 (Fla. 5" DCA 2000); Sponco Mfg. Inc. v. Alcover, 656
So.2d 629 (Fla. 3d DCA 1995).
19. Before imposing any sanctions to remedy the spoliation of evidence, a court must
answer three questions: 1) whether the evidence existed at one time; 2) whether the spoliator had
a duty to preserve the evidence; and 3) whether the evidence was critical to an opposing party
being able to prove its prima facie case or a defense. See Golden Yachts, 920 So.2d at 781. To
provide an adverse-presumption instruction, a court must find that the spoliator was duty-bound
to preserve the evidence. /d. However, “an adverse inference may arise in any situation where
potentially self-damaging evidence is in the possession of a party and that party either loses or
destroys the evidence.” /d. (internal citation omitted.) See also Martino v. Wal-Mart Stores, Inc.,
835 So. 2d 1251, 125-57 (Fla. 4th DCA 2003), approved, 908 So. 2d 342 (Fla. 2005); League of
Women Voters of Fla. v. Detzner, 172 So.3d 363 (Fla. 2015).
20. As a remedy for spoliation, the court may instruct a jury to infer under such
circumstances that the evidence would have contained indications of liability. See Martino, 835
So.2d at 346 This adverse inference is now codified in Florida Jury Instruction 301.11(a), which
provides:
Tf you find that (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or
otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her]
[its] possession, custody, or control; and the (describe evidence) would have been material
in deciding the disputed issues in this case; then you may, but are not required to, infer that
this evidence would have been unfavorable to (name of party). You may consider this,
together with the other evidence, in determining the issues of the case.
21. With the imposition of the burden-shifting sanction, the defendant can still
introduce evidence tending to disprove the presumed fact; then the fact finder must decide whether
the evidence introduced is sufficient to meet the burden of proving that the presumed fact did not
exist. See Valcin at 600; Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer,
802 So.2d 346 (Fla. 4th DCA 2001). This presumption is applicable in cases where either primary
or secondary evidence is lost, destroyed, or not maintained. See Kretzer; Rockwell Int’l Corp. v.
Menzies, 561 So.2d 677 (Fla. 3" DCA 1990).
22. Additionally, a court may impose other remedies, including allowing the aggrieved
party to present evidence about the pre-incident condition of the lost evidence and the
circumstances surrounding the spoliation. Golden Yachts, 920 So.2d at 780 (citing Gath v. M/A—
COM, Inc., 440 Mass. 482, 802 N.E.2d 521, 527 (2003)). “These remedies may be cumulative, as
determined by the judge from the circumstances of each case, in the exercise of broad discretion.”
Id.
23. Moreover, courts hold inherent power to sanction the destruction of evidence with
any sanctions they deem appropriate. For instance, the harshest sanction of a default judgment may
be necessary to remedy the spoliation of evidence. Rockwell, 561 So.2d at 680. Harsh sanctions
are appropriate where the degree of sanction imposed relates to the degree of prejudice suffered
by the moving party. See Id. at 679.
WHEREFORE, the Plaintiff DESTINY MCLEOD, respectfully moves this court for entry
of an Order sanctioning RICHARD MICHAEL ANTHONY WYNTER, and providing other
sanctions the court deems fair, just, and appropriate.
Respectfully submitted,
/s/ Vincent M. Bruner
VINCENT M. BRUNER, ESQ.
BRUNER LAW FIRM
Florida Bar No.: 109030
3201 W-US Highway 98
Panama City, FL 32401
(850) 243-4227
vincentm@brunerfirm.com
priddy@brunerfirm.com
Attorney for Plaintiff
7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29" day of February, 2024, a true and correct copy of
the foregoing has been filed with this Court via the E-Filing Portal, and served via E-mail through
the E-Filing Portal to all of the registered parties with the E-filing Portal system.
/s/ Vincent M. Bruner
Attorney for Plaintiff
110 Eglin Parkway, S.E.
Fort Walton Beach, FL 32548
P: 850.243.2222
BRUNER 3201 W. Highway 98
Panama City, FL 32401
P: 850.769.9292
F: 850.664.0951 F: 850.664.0951
July 8, 2021
VIA EMAIL: lynn smith@swifttrans.com
VIA USPS CERTIFIED MAIL:9414811699000068570134
Attn. Lynn Smith
Swift Leasing Co.
6500 W Industrial HWY
Gary, IN 46406
Claim number: 2107010162895
Dear Sirs or Madams:
As you may be aware, my firm represents the DESTINY MCLEOD for personal
injuries resulting from a collision which occurred on July 1, 2021, in Saint Lucie,
Florida. This letter is to formally demand the preservation of certain evidence related
to this collision. You must preserve the evidence that shows if the company or the
driver either contributed to the cause of the wreck or did nothing to contribute to the
cause of the wreck.
IF YOU BELIEVE THAT DOCUMENTS EXIST THAT SHOW THAT THE
COMPANY OR THE DRIVER HAD NO FAULT FOR THE WRECK, SOME
FAULT, OR COMPLETE FAULT, YOU MUST SAVE THOSE DOCUMENTS
UNTIL THE TRIAL OR SETTLEMENT OF THIS MATTER SO A FULL
ANALYSIS OF THE CAUSE OF THIS WRECK CAN BE MADE AND THE
PERCENTAGE OF FAULT OF EACH PARTY CAN BE DETERMINED. IF
YOU FAIL TO SAVE THESE DOCUMENTS IT WILL PROVE THAT YOU
DELIBERATELY DESTROYED THE DOCUMENTS TO HIDE YOUR FAULT
FOR THIS WRECK. (See FMCSR 379, App. A(F)(2)(a) and Note A)
You should save all documents that show you were a safe company and that
you fully complied with the Federal Motor Carrier Safety Regulations and properly
hired, supervised, trained, and retained the driver and maintained the vehicle.
More specifically the law states that if you fail to properly secure and preserve
this important evidence it will give rise to the legal presumption that the evidence
would have been harmful to your side of the case. Further, if you fail to preserve and
maintain this evidence, we will seek any sanctions available under the law.
The destruction, alteration, or loss of any of the below constitutes destruction
of evidence under the Law. We specifically demand that the following evidence,
EXHIBITA
MOTION FOR SANCTIONS
typically used to determine fault in truck wreck cases, be maintained and preserved,
and not be destroyed, modified, altered, repaired, or changed in any manner, and
further that you immediately put any third party vendor that has or controls this
information, material, or documentation, on notice to maintain and preserve without
change:
1 The tractor and trailer involved in this collision.
2 Bills of lading for any shipments transported by the driver and co-driver, for the
day of the collision and the thirty (30) day period preceding the collision.
Any oversized permits or other applicable permits or licenses covering the
vehicle or load on the day of the collision.
The driver’s complete driver qualification file, as required by 49 C.F.R. 391.51,
including but not limited to:
a) Application for employment
b) CDL license
°) Driver’s certification of prior traffic violations
d) Driver’s certification of prior collisions
e) Driver’s employment history
Pre-employment MVR
8) Annual MVR
h) Annual review of driver history
i) Certification of road test
dD Medical examiner’s certificate
k) HAZMAT or other training documents
In addition please also preserve:
+ All drug and alcohol testing records of the driver
m) All inquiries and responses regarding the driver’s employment
history
5 All documents normally used to determine whether a wreck was preventable or
non-preventable, whether or not such determination was actually made in this
case, to include but not be limited to:
a) The driver’s post-collision alcohol and drug testing results.
b) Documents used to determine if the driver was on a cell phone or other
electronic device at the time of the wreck.
c) Documents used to determine whether the driver was texting at the time
of the wreck.
EXHIBIT A
MOTION FOR SANCTIONS
d) Driver Log Audit and Violation Reports — Whether paper or electronic,
whether daily, weekly, monthly, quarterly, cumulatively, and for all
other time periods.
e) Reports electronically available through RAIR, JJ Keller, or other
services.
f) The GPS location data for six months prior to the wreck for the driver.
The accident register maintained by the motor carrier as required by federal law
for the one (1) year period preceding this collision. (FMCSR 390.15)
All OmniTRAC, Qualcomm, MVPC, QTRACS, OmniExpress, TruckMail,
TrailerTRACS, SensorTRACS, JTRACS, and other similar systems data for the
six (6) months prior to the collision and the day of the collision, for this driver,
truck, and trailer.
Cargo pickup or delivery orders prepared by motor carriers, brokers, shippers,
receivers, driver, or other persons, or organizations for thirty (30) days prior to
the date of the collision as well as the day of the collision.
Accounting records, cargo transportation bills and subsequent payments or
other records indicating billings for transportation or subsequent payment for
the transportation of cargo, with both the front and back of cancelled checks for
argo transported by the driver and/or truck involved in the collision for thirty
(30) days prior to the date of the collision as well as the day of the collision.
10 The entire personnel, discipline, and training files of the driver involved in this
collision.
11 All letters, reports, and written material from a government entity involving
safety, and safety ratings for the company and driver to include, but not be
limited to, Department of Transportation audits by the state or federal
government, the Federal Motor Carrier Safety Administration, or material
generated on your company or driver pursuant to SAFERSYS or CSA 2010. The
request is limited to one (1) year prior to the wreck and any subsequent
document, report, letter, or other material (to include electronically transmitted
information) that includes the date of the wreck or the driver.
12. The front and back of the driver’s daily logs and his co-driver’s logs (if any) for
the day of the collision, and the six month period preceding the collision, together
with all material required by 49 C.F.R. 395.8 and 395.15 for the driver(s)
involved in the above matter together with the results of any computer program
used to check logs as well as all results of any audit of the logs by your company
or a third party. This specifically includes any electric on board computers
(AOBRD’s, EOBR’s, etc...) and the audit trail for those entries. We require you
EXHIBIT A
MOTION FOR SANCTIONS
to put any vendor which stores or audits this information on notice of the need
to preserve this data.
13. All existing driver vehicle inspection reports required under 49 C.F.R. 396.11 for
the vehicle involved in the above collision, to include all existing daily inspection
reports for the tractor and trailer involved in this collision.
14 All existing maintenance, inspection and repair records or work orders on the
tractor and trailer involved in the above collision.
15. All annual inspection reports for the tractor and trailer involved in the above
collision, covering the date of the collision.
16. Photographs, video, computer generated media, or other recordings of the
interior and exterior of vehicles involved in this collision, the collision scene, the
occurrence, or relating to any equipment or things originally located at or near
the site of the occurrence.
17. Any lease contracts or agreements covering the driver or the tractor or trailer
involved in this collision.
18. Any interchange agreements regarding the tractor or trailer involved in this
collision.
19. Any computer data from the tractor or trailer to include but not be limited to:
any data and printout from on-board recording devices, including but not limited
to the ECM (electronic control module), any on-board computer, tachograph, trip
monitor, trip recorder, trip master, Hours of Service (HOS) or other recording or
tracking device for the day of the collision and the six (6) month period preceding
the collision for the equipment involved in the collision.
20. Any post-collision maintenance, inspection, or repair records or invoices in
regard to the tractor and trailer involved in the above collision.
21 Any weight tickets, fuel receipts, hotel bills, tolls, or other records of expenses,
to include expense sheets and settlement sheets regardless of type (to specifically
include Comdata or similar vendor reports), for the truck driver pertaining to
trips taken for the day of the collision and thirty (30) days prior to the collision.
22 Any trip reports, dispatch records, trip envelopes regarding the driver or the
tractor or trailer involved in this collision for the day of the collision and the
thirty (30) day period preceding this collision.
EXHIBITA
MOTION FOR SANCTIONS
23. Any e-mails, electronic messages, letters, memos, or other documents concerning
this collision.
24 All drivers’ manuals, guidelines, rules or regulations, safety messages, safety
and training materials for the safe operation of a tractor trailer given to drivers
such as the one involved in this collision.
25 Any reports, memos, notes, logs or other documents evidencing complaints about
the driver in the above collision at any time.
26 Any DOT or PSC reports, memos, notes or correspondence concerning the driver
or the tractor or trailer involved in this collision.
27 Any and all communications via CB radio, mobile or satellite communication
systems, email, cellular phone, pager or other in cab communication device to
include the bills for the devices for the day before, the day of, and the two days
after the collision.
28 Any and all computer, electronic, or e-mail messages created in the first forty
eight hours immediately after the incident, by and between the defendant and
any agents or third parties relating to the facts, circumstances, or actual
investigation of the incident as well as any computer messages which relate to
this particular incident, whether generated or received.
29 If not previously listed, all documents required by Federal Motor Carrier Safety
Regulation 395.8, specifically those items identified in the Department of
Transportation’s interpretation of the regulation in its Answer to Question 10, a
copy of which is attached.
30. Any other items associated in any way with the wreck, documents, database, or
other piece of evidence concerning or reflecting upon the driver, the collision, the
truck, or the trailer.
31 All correspondence and documents regarding any safety issue for the driver to
include but not be limited to the initiation, investigation and final conclusion of
any:
(1) warning letters,
(2) targeted roadside inspections
(3) any document that stated the driver was unfit.
EXHIBIT A
MOTION FOR SANCTIONS
32. All correspondence and documents regarding any safety issue for the
company to include but not be limited to the initiation, investigation and
final conclusion of:
()) any off-site investigation,
(2) any on-site investigation,
(3) any cooperative safety plan,
(4) any notice of violation,
(5) any notice of claim/settlement agreement,
(6) any document that stated the company was unfit, and
(7) any document that the company was to be subjected to targeted
roadside inspections.
33. Any document that found the driver or the company deficient in any BASIC
(Behavior Analysis and Safety Improvement Categories) category.
34 The BASIC measurements for the trucking company and driver for the three
years prior to the collision.
35. Any correspondence regarding the company or the driver objecting to, or asking
for a correction of, any BASIC measurement or FMCSA intervention.
36 The Pre-Employment Screening Program (PSP) report on the driver for each
month for the three years prior to the collision.
37 Any documents showing inquiry by the trucking company for any PSP reports of
the driver for the three years prior to the collision
38 Copy of the carrier profile maintained by MCMIS (Motor Carrier Management
Information System) for the three years prior to the collision.
39 All logs of activity (both in paper and electronic formats) on computer systems
and networks that have or may have been used to process or store electronic data
containing information about or related to safety and safety policies, the
collision, the driver(s), the truck, the trailer, witnesses to the collision, the
plaintiff(s), the load, the facts of the collision, preventability determinations,
GPS data, Hours of Service (HOS) data, dispatcher data for this driver(s), this
truck, and this trailer.
40 Courts have made it clear that all information available on electronic storage
media is discoverable, whether readily readable (“active”) or “deleted” but
recoverable. See, e.g., Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y. 1988; a
request for “raw information in computer banks” was proper and obtainable
under the discovery rules); Gates Rubber Co. v. Bando Chemical Indus., Ltd.,
EXHIBIT A
MOTION FOR SANCTIONS
167 F.R.D. 90, 112 (D. Colo. 1996; mirror-image copy of everything on a hard
drive “the method which would yield the most complete and accurate results,”
chastising a party’s expert for failing to do so); and Northwest Airlines, Inc. v.
Teamsters Local 2000, 163 L.R.R.M. (BNA) 2460, (USDC Minn. 1999); court
ordered image-copying by Northwest’s expert of home computer hard drives of
employees suspected of orchestrating an illegal “sick-out” on the Internet).
Accordingly, electronic data and storage media that may be subject to our
discovery requests and that your client(s) are obligated to maintain and not alter
or destroy, include but are not limited to the following:
Introduction: description of files and file types sought
a. All digital or analog electronic files, including “deleted” files and file
fragments, stored in machine-readable format on magnetic, optical or other
storage media, including the hard drives or floppy disks used by your
computers and their backup media (e.g., other hard drives, backup tapes,
floppy disks, DVD’s, Jaz cartridges, CD-ROMs, etc.) or otherwise, whether
such files have been reduced to paper printouts or not. More specifically,
you are to preserve all of your e-mails, both sent and received, whether
internally or externally; all word-processed files, including drafts and
revisions; all spreadsheets, including drafts and revisions; all databases; all
CAD (computer-aided design) files, including drafts and revisions; all
presentation data or slide shows produced by presentation software (such
as Microsoft PowerPoint); all graphs, charts and other data produced by
project management software (such as Microsoft Project); all data
generated by calendaring, task management and personal information
management (PIM) software (such as Microsoft Outlook or Lotus Notes); all
data created with the use of personal data assistants (PDAs), such as Palm
Pilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC
devices; all data created with the use of document management software;
all data created with the use of paper and electronic mail logging and
routing software; all Internet and Web-browser-generated history files,
caches and “cookies” files generated at the workstation of each employee
and/or agent in your employ and on any and all backup storage media; and
any and all other files generated by users through the use of computers
and/or telecommunications, including but not limited to voice mail.
Further, you are to preserve any log or logs of network use by employees or
otherwise, whether kept in paper or electronic form, and to preserve all
copies of your backup tapes and the software necessary to reconstruct the
data on those tapes, so that there can be made a complete, bit-by-bit
“mirror” evidentiary image copy of the storage media of each and every
personal computer (and/or workstation) and network server in your control
EXHIBIT A
MOTION FOR SANCTIONS
and custody, as well as image copies of all hard drives retained by you and
no longer in service, but in use at any time from June 3, 2021 to the present.
You are also not to pack, compress, purge or otherwise dispose of files and
parts of files unless a true and correct copy of such files is made.
You are also to preserve and not destroy all passwords, decryption
procedures (including, if necessary, the software to decrypt the files);
network access codes, ID names, manuals, tutorials, written instructions,
decompression or reconstruction and any and all other
software,
information and things necessary to access, view and (if necessary)
reconstruct the electronic data we will request through discovery.
Business Records: All documents and information about documents
containing backup and/or archive policy and/or procedure, document
retention policy, names of backup and/or archive software, names and
addresses of any offsite storage provider.
Online Data Storage on Mainframes and Minicomputers: With
regard to online storage and/or direct access storage devices attached to
your mainframe computers and/or minicomputers: they are not to modify
or delete any electronic data files, “deleted” files and file fragments existing
at the time of this letter’s delivery, which meet the definitions set forth in
this letter, unless a true and correct copy of each such electronic data file
has been made and steps have been taken to assure that such a copy will
be preserved and accessible for purposes of this litigation.
Offline Data Storage, Backups and Archives, Floppy Diskettes,
Tapes and Other Removable Electronic Media: With regard to all
electronic media used for offline storage, including magnetic tapes and
cartridges and other media that, at the time of this letter’s delivery,
contained any electronic data meeting the criteria listed above: You are to
stop any activity that may result in the loss of such electronic data,
including rotation, destruction, overwriting and/or erasure of such media in
whole or in part. This request is intended to cover all removable electronic
media used for data storage in connection with their computer systems,
including magnetic tapes and cartridges, magneto-optical disks, floppy
diskettes and all other media, whether used with personal computers,
minicomputers or mainframes or other computers, and whether computer
systems.
41. All e-mails, and information about e-mails (including message contents, header
information and logs of e-mail system usage) sent or received by the driver and
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MOTION FOR SANCTIONS
co-driver involved in the collision for period of time involving the collision and
the seven (7) days before and after the collision.
42 All other e-mail and information about e-mail (including message contents,
header information and logs of e-mail system usage) containing information
about or related to company safety and safety policies, the collision, the driver(s),
the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts
of the collision, preventability determinations, GPS data, dispatcher data for
this driver(s), this truck, and this trailer.
43. All databases (including all records and fields and structural information in such
databases), containing any reference to and/or information about or related to
company safety and safety policies, the collision, the driver(s), the truck, the
trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the
collision, preventability determinations, GPS data, dispatcher data for this
driver(s), this truck, and this trailer.
44 All electronic documents and the storage media on which they reside which
contain relevant, discoverable information beyond that which may be found in
printed documents. Therefore, even where a paper copy exists, we will seek all
documents in their electronic form along with information about those
documents contained on the media. We also will seek paper printouts of only
those documents that contain unique information after they were printed out
(such as paper documents containing handwriting, signatures, marginalia,
drawings, annotations, highlighting and redactions) along with any paper
documents for which no corresponding electronic files exist. Our discovery
requests will ask for certain data on the hard disks, floppy disks and backup
media used in your computers, some of which data are not readily available to
an ordinary computer user, such as “deleted” files and “file fragments.” As you
may know, although a user may “erase” or “delete” a file, all that is really erased
is a reference to that file in a table on the hard disk; unless overwritten with
new data, a “deleted” file can be as intact on the disk as any “active” file you
would see in a directory listing.
45, All word processing files, including prior drafts, “deleted” files and file
fragments, containing information about or related to safety and safety policies,
the collision, the driver(s), the truck, the trailer, witnesses to the collision, the
plaintiff(s), the load, the facts of the collision, preventability determinations,
GPS data, dispatcher data for this driver(s), this truck, and this trailer.
46 With regard to electronic data created by application programs which process
financial, accounting and billing information, all electronic data files, including
prior drafts, “deleted” files and file fragments, containing information about or
related to safety and safety policies, the collision, the driver(s), the truck, the
EXHIBIT A
MOTION FOR SANCTIONS
trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the
collision, preventability determinations, GPS data, dispatcher data for this
driver(s), this truck, and this trailer.
AT All files, including prior drafts, “deleted” files and file fragments, containing
information from electronic calendars and scheduling programs regarding or
related to safety and safety policies, the collision, the driver(s), the truck, the
trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the
collision, preventability determinations, GPS data, dispatcher data for this
driver(s), this truck, and this trailer.
48 All electronic data files, including prior drafts, “deleted” files and file fragments
about or related to safety and safety policies, the collision, the driver(s), the
truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of
the collision, preventability determinations, GPS data, dispatcher data for this
driver(s), this truck, and this trailer.
49 Replacement of Data Storage Devices: You or your agents are not to dispose
of any electronic data storage devices and/or media that may be replaced due to
failure and/or upgrade and/or other reasons that may contain electronic data
meeting the criteria listed above.
50. Fixed Drives on Stand-Alone Personal Computers and Network
Workstations: With regard to electronic data meeting the criteria listed above,
which existed on fixed drives attached to stand-alone microcomputers and/or
network workstations at the time of this letter’s delivery: You are not to alter
or erase such electronic data, and not to perform other procedures (such as data
compression and disk defragmentation or optimization routines) that may
impact such data, unless a true and correct copy has been made of such active
files and of completely restored versions of such deleted electronic files and file
fragments, copies have been made of all directory listings (including hidden files)
for all directories and subdirectories containing such files, and arrangements
have been made to preserve copies during the pendency of this litigation.
51 Programs and Utilities: You are to preserve copies of all application programs
and utilities, which may be used to process electronic data covered by this letter.
52 Log of System Modifications: You are to maintain an activity log to document
modifications made to any electronic data processing system that may affect the
system’s capability to process any electronic data meeting the criteria listed
above, regardless of whether such modifications were made by employees,
contractors, vendors and/or any other third parties.
EXHIBIT A
MOTION FOR SANCTIONS
53. Personal Computers Used by Your Employees and/or Their Secretaries
and Assistants: The following steps should immediately be taken in regard to
all personal computers used by your employees and/or their secretaries and
assistants:
a. As to fixed drives attached to such computers: (i) a true and correct copy is
to be made of all electronic data on such fixed drives relating to this matter,
including all active files and completely restored versions of all deleted
electronic files and file fragments; (ii) full directory listings (including
hidden files) for all directories and subdirectories (including hidden
directories) on such fixed drives should be written; and (iii) such copies and
listings are to be preserved until this matter reaches its final resolution.
b. All floppy diskettes, magnetic tapes and cartridges, and other media used
in connection with such computers prior to the date of delivery of this letter
containing any electronic data relating to this matter are to be collected and
put into storage for the duration of this lawsuit.
54 Evidence Created Subsequent to This Letter: With regard to electronic
data created subsequent to the date of delivery of this letter, relevant evidence
is not be destroyed and you are to take whatever steps are appropriate to avoid
destruction of evidence.
In order to assure that your obligation to preserve documents and things is met,
please immediately forward a copy of this letter to all persons and entities with
custodial responsibility for the items referred to in this letter, to specifically include
third parties and vendors.
In regard to the tractor and trailer involved in this collision, we would like to set up a
mutually convenient time for our expert to inspect, examine, and conduct tests on the
unit. We specifically request that you make no repairs or adjustments to the tractor or
trailer until this inspection is completed. Please contact us to discuss the scheduling of
an inspection.
We request a non-destructive examination of the interior and exterior of the truck and
trailer specifically including, but not limited to, access to the subject vehicle for
inspection, and that you permit the following:
1. Provide access to the vehicle to include the ignition key and other keys or
access codes as may be necessary to examine the truck and trailer, their
mechanical components, storage compartments and allow recording or
downloading of mechanical or electronic on-board recording Electronic Control
Module (ECM) or Event Data Recorder (EDR) commonly known as a “black
box” or any other computer or data link of the subject vehicle to include but not
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MOTION FOR SANCTIONS
be limited to devices such as Cummins Celect™, Cummins Quik-Link®,
NEXIQ Pro-Link®, Detroit Diesel Pro Driver®, Detroit Diesel DDEC II® &
DDEC IV®, Caterpillar Fleet Information System®, Caterpillar ADEM® or
any similar device (if your vehicles are so equipped).
Provide access to the vehicle to start the engine, charge the air reservoirs and
allow brake system examination and testing.
If the vehicle’s engine cannot be started or the air brake system has been
compromised so it will not retain air pressure, remote air pressure supply may
be used to charge the system for examination and testing.
Air pressure supply lines and air pressure gauges may be inserted at points
that will not change adjustment of the foundation brakes of the subject vehicle.
The vehicle may be moved or lifted onto portable scales for the purpose
ascertaining the vehicle weight after the black box is downloaded.
Items of evidence located that may be lost, contaminated or destroyed will be
identified, photographed and turned over to appropriate representatives of the
parties using reasonable evidence storage practices.
Accordingly, please contact my office to arrange for a mutually convenient time for
the examination of the subject truck. If the subject truck is not under the control of
Swift Transportation, please provide information as to its last known whereabouts,
and take all reasonable measures to ensure its preservation. Also, if the subject
truck and trailer is no longer under the control of Swift Transportation, then please
provide a similar model which is similarly configured for purposes of examination.
As we do not represent you, I strongly urge you to consult your own lawyer, in
addition to any lawyer with divided loyalties an insurance company might provide,
as soon as possible to have these matters, and your rights, fully explained to you.
Sincerely,
/S/VINCENT BRUNER
ATTORNEY AT LAW
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Filing # 193065518 E-Filed 02/29/2024 06:30:20 PM IN THE CIRCUIT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR ST. LUCIE COUNTY, FLORIDA CIVIL DIVISION DESTINY MCLEOD, Plaintiff, vs. CASE NO. 2022CA000396 FRANCISCO SANTOS CRESPO; BRANIF ENTERPRISES, INC.; RICHARD MICHAEL ANTHONY WYNTER; and SWIFT TRANSPORTATION CO. OF ARIZONA, LLC Defendants. PLAINTIFF’S AMENDED MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE Comes now the Plaintiff, DESTINY MCLEOD, by and through undersigned counsel, and pursuant to Florida Rules of Civil Procedure 1.380, hereby files this Motion for Sanctions and Jury Instruction for Spoliation of Evidence. In Support thereof, Plaintiff states as follows: SUMMARY OF ARGUMENT 1 This case derives out of a motor vehicle crash that occurred on July 1, 2021, involving vehicles operated by DESTINY MCLEOD (hereinafter “Plaintiff’), FRANCISCO SANTOS CRESPO (hereinafter “Mr. Crespo”), and RICHARD MICHAEL ANTHONY WYNTER (hereinafter “Mr. Wynter”). Mr. Crespo was operating a truck for BRANIF ENTERPRISES (hereinafter “BRANIF”). Mr. Wynter was operating the semi-truck for SWIFT TRANSPORTATION CO (hereinafter “SWIFT”). 2. On July 8, 2021, Plaintiff sent a certified letter requesting Defendant SWIFT, and driver, Mr. Wynter, preserve all evidence relating to the incident. (EXHIBIT A) 3 On July 15, 2022, Defendant BRANIF served Mr. Wynter Defendant’s First Set of Interrogatories. 4 In response to Defendants’ Interrogatory #2 inquiring whether Mr. Wynter ever installed a dashcam or surveillance camera in his truck. Mr. Wynter stated that he installed a camera in the tractor he was driving on the day of the crash upon receiving the lease. That camera remained in the vehicle until the time of the crash. He further claims that he mailed the camera memory card “around June or July of 2021” and never received confirmation of its receipt or delivery. (EXHIBIT B) 5 In his deposition, Mr. Wynter made several inconsistent and contradicting statements regarding his dashcam. Mr. Wynter stated that his dashcam failed to record the incident because there was nobody in front of him, and it only records with motion sensors, so you have to be tailgating or physically push the button to make the dashcam record. Mr. Wynter said that his dash camera does not continuously record because it only has a 64-gig memory card and it’s not enough to record. Mr. Wynter stated that his dashcam records on a loop, so even if the memory is full, it continues recording over the old stuff. Mr. Wynter said his dashcam is supposed to record motion events like tailgating and crashes. Mr. Wynter said his dashcam didn’t record because it fell off the windshield. Mr. Wynter said he is unsure if the dashcam recorded him striking rocks. Mr. Wynter said he attempted to watch video after the wreck from the app on his phone, but not the actual dashcam or memory card itself. (WYNTER Deposition Transcript, Page 102, Line 24 — Page 107 - EXHIBIT C) 6. In his deposition, Mr. Wynter said that a lady at SWIFT asked him to send them the memory card from the dash camera as soon as possible. Mr. Wynter said that the lady at SWIFT did not specify whether to send the memory card by USPS, UPS, FedEx, or Electronically. Mr. Wynter said that the lady at SWIFT provided him with a mailing address but did not offer to cover the cost of shipping. Mr. Wynter said he put the memory card in a regular envelope, did not get a tracking number for the envelope, and had never lost something in the mail before. Mr. Wynter said he was never told he could not mail a physical object in the mail. (WYNTER Deposition Transcript, Pages 108 — 114 and Page 119 - EXHIBIT D) 7 The Plaintiff's Motion to Compel Defendant, Swift Transportation Co. of Arizona, LLC’s Deposition was granted on February 27, 2024. Plaintiff will supplement this Motion for Sanctions after taking the deposition of a SWIFT corporate representative responsible for the investigation and intake of evidence for the incident on July 1, 2021. (EXHIBIT E) 8 The dashcam without the memory card is currently in the possession of counsel for Mr. Wynter and SWIFT. Neither the camera nor its contents have been made available to the Plaintiff. 9. The Plaintiff was never able to inspect the memory card from the dashcam installed on Mr. Wynter’s vehicle nor view any of its recorded contents. The disappearance of Mr. Wynter’s dashcam memory card resulted in spoliation of critical material evidence in the case including a video recording of the moments leading up to the subject matter crash, as was as the crash itself. 10. Liability is a central issue in this case. There are multiple crashes, caused by multiple Defendants, but the degree of liability assignable to each Defendant is in dispute. Under Florida law, courts shall enter judgment against each party liable on the basis of such party’s percentage of fault. See §768.81(3), Fla. Stat. (2022). 11. The video recording from Mr. Wynter’s camera would have allowed the jury to know how much time elapsed between the collisions caused by each Defendant, make determinations about liability by viewing the severity of impact in this collision, and Mr. Wynter’s actions leading up to the latter crash. The video could have shown that Mr. Wynter was not paying attention, following too closely, or that the two collisions are significantly separated in time, meaning the now-lost video data would be adverse to his liability position. Without this video evidence the jury is left to rely on Mr. Wynter’s testimony about his actions. 12. Mr. Wynter failed to preserve his camera and lost material evidence after becoming aware of a potential civil action. The video would have revealed material information about the incident, specifically as it related to liability. The Plaintiff and BRANIF will be unable to conduct a thorough and meaningful investigation into the cause of the crash. As a result, Mr. Wynter is better positioned to use this lack of evidence to his advantage in this lawsuit. 13. Defendant SWIFT, and Counsel for Defendant, have employed a similar abusive pattern of conduct in discovery on this case and in the past. (EXHIBIT F) 14. Therefore, Mr. Wynter and SWIFT should be sanctioned because 1) he owned and controlled the camera; 2) he had a duty to preserve the camera; 3) he was put on notice to preserve this type of evidence, and 4) the video was critical to prove liability in this case. Mr. Wynter’s pleadings should be stricken due to the nature of the destruction of evidence. In the alternative, the jury should receive an adverse-inference instruction because the video evidence from Mr. Wynter was likely damaging to Mr. Wynter’s defense. MEMORANDUM OF LAW 15. Florida law requires parties to a lawsuit to preserve all evidence which could be relevant to their cases as soon as litigation is reasonably anticipated. See e.g., Metro Dade County v. Bermudez, 648 So. 2d 197, 200 (Fla. 1" DCA 1994) (holding that parties to a lawsuit have a duty to preserve evidence as soon as litigation is anticipated.) Spoliation of evidence is the negligent or intentional destruction, alteration, or concealment of evidence. See Golden Yachts, Inc. v. Hall, 920 So. 24 777, 781 (Fla. 4 DCA 2006). 16. The spoliation of critical evidence may trigger sanctions against the offending party. See, e.g., DeLong vs. A-Top Air Conditioning Co., 710 So. 2d 706 (Fla. 3rd DCA 1998); Valcin vs. Public Health Trust of Dade County, 473 So. 2d 1297 (Fla. 3rd DCA 1984); Hernandez vs. Pino, 482 So. 2d 450 (Fla. 3rd DCA 1986). “The goal in spoliation cases is to assure that the non-spoliator does not bear an unfair burden.” Reed v. Alpha Prof'l Tools, 975 So. 2d 1202, 1204 (Fla. 5th DCA 2008). The imposition of sanctions after the spoliation of evidence is necessary to place the parties on equal footing and is an attempt to put the aggrieved party in the same position it would have been in had the evidence not been lost or destroyed. See Id. 17. When spoliation is established, a trial court has the discretion to impose appropriate sanctions or remedies, and the available sanctions depend on the severity of the wrongful act and the prejudicial effect to the aggrieved party. For example, when a case involves negligent spoliation, a court may impose adverse-evidentiary inferences and adverse presumptions during trial to address the lack of evidence. See Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 346-47 (Fla. 2005). When a case involves intentional spoliation, however, courts often strike pleadings or enter default judgments. See id. 18. More than one sanction may be imposed by a court for either inadvertent or intentional conduct in the loss, destruction, or other disposition of evidence material to a case. See Golden Yachts, 920 So.2d at 780; Am. Hosp. Mgmt. Co. of Minnesota v. Hettiger, 904 So.2d 547 (Fla. 4th DCA 2005); Jost v. Lakeland Re.g Med. Cntr, 844 So.2d 656 (Fla. 2d DCA 2003), Torres v. Matsushita Elec. Corp., 762 So.2d 1014 (Fla. 5" DCA 2000); Sponco Mfg. Inc. v. Alcover, 656 So.2d 629 (Fla. 3d DCA 1995). 19. Before imposing any sanctions to remedy the spoliation of evidence, a court must answer three questions: 1) whether the evidence existed at one time; 2) whether the spoliator had a duty to preserve the evidence; and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or a defense. See Golden Yachts, 920 So.2d at 781. To provide an adverse-presumption instruction, a court must find that the spoliator was duty-bound to preserve the evidence. /d. However, “an adverse inference may arise in any situation where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence.” /d. (internal citation omitted.) See also Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 125-57 (Fla. 4th DCA 2003), approved, 908 So. 2d 342 (Fla. 2005); League of Women Voters of Fla. v. Detzner, 172 So.3d 363 (Fla. 2015). 20. As a remedy for spoliation, the court may instruct a jury to infer under such circumstances that the evidence would have contained indications of liability. See Martino, 835 So.2d at 346 This adverse inference is now codified in Florida Jury Instruction 301.11(a), which provides: Tf you find that (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession, custody, or control; and the (describe evidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case. 21. With the imposition of the burden-shifting sanction, the defendant can still introduce evidence tending to disprove the presumed fact; then the fact finder must decide whether the evidence introduced is sufficient to meet the burden of proving that the presumed fact did not exist. See Valcin at 600; Anesthesiology Critical Care & Pain Mgmt. Consultants, P.A. v. Kretzer, 802 So.2d 346 (Fla. 4th DCA 2001). This presumption is applicable in cases where either primary or secondary evidence is lost, destroyed, or not maintained. See Kretzer; Rockwell Int’l Corp. v. Menzies, 561 So.2d 677 (Fla. 3" DCA 1990). 22. Additionally, a court may impose other remedies, including allowing the aggrieved party to present evidence about the pre-incident condition of the lost evidence and the circumstances surrounding the spoliation. Golden Yachts, 920 So.2d at 780 (citing Gath v. M/A— COM, Inc., 440 Mass. 482, 802 N.E.2d 521, 527 (2003)). “These remedies may be cumulative, as determined by the judge from the circumstances of each case, in the exercise of broad discretion.” Id. 23. Moreover, courts hold inherent power to sanction the destruction of evidence with any sanctions they deem appropriate. For instance, the harshest sanction of a default judgment may be necessary to remedy the spoliation of evidence. Rockwell, 561 So.2d at 680. Harsh sanctions are appropriate where the degree of sanction imposed relates to the degree of prejudice suffered by the moving party. See Id. at 679. WHEREFORE, the Plaintiff DESTINY MCLEOD, respectfully moves this court for entry of an Order sanctioning RICHARD MICHAEL ANTHONY WYNTER, and providing other sanctions the court deems fair, just, and appropriate. Respectfully submitted, /s/ Vincent M. Bruner VINCENT M. BRUNER, ESQ. BRUNER LAW FIRM Florida Bar No.: 109030 3201 W-US Highway 98 Panama City, FL 32401 (850) 243-4227 vincentm@brunerfirm.com priddy@brunerfirm.com Attorney for Plaintiff 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29" day of February, 2024, a true and correct copy of the foregoing has been filed with this Court via the E-Filing Portal, and served via E-mail through the E-Filing Portal to all of the registered parties with the E-filing Portal system. /s/ Vincent M. Bruner Attorney for Plaintiff 110 Eglin Parkway, S.E. Fort Walton Beach, FL 32548 P: 850.243.2222 BRUNER 3201 W. Highway 98 Panama City, FL 32401 P: 850.769.9292 F: 850.664.0951 F: 850.664.0951 July 8, 2021 VIA EMAIL: lynn smith@swifttrans.com VIA USPS CERTIFIED MAIL:9414811699000068570134 Attn. Lynn Smith Swift Leasing Co. 6500 W Industrial HWY Gary, IN 46406 Claim number: 2107010162895 Dear Sirs or Madams: As you may be aware, my firm represents the DESTINY MCLEOD for personal injuries resulting from a collision which occurred on July 1, 2021, in Saint Lucie, Florida. This letter is to formally demand the preservation of certain evidence related to this collision. You must preserve the evidence that shows if the company or the driver either contributed to the cause of the wreck or did nothing to contribute to the cause of the wreck. IF YOU BELIEVE THAT DOCUMENTS EXIST THAT SHOW THAT THE COMPANY OR THE DRIVER HAD NO FAULT FOR THE WRECK, SOME FAULT, OR COMPLETE FAULT, YOU MUST SAVE THOSE DOCUMENTS UNTIL THE TRIAL OR SETTLEMENT OF THIS MATTER SO A FULL ANALYSIS OF THE CAUSE OF THIS WRECK CAN BE MADE AND THE PERCENTAGE OF FAULT OF EACH PARTY CAN BE DETERMINED. IF YOU FAIL TO SAVE THESE DOCUMENTS IT WILL PROVE THAT YOU DELIBERATELY DESTROYED THE DOCUMENTS TO HIDE YOUR FAULT FOR THIS WRECK. (See FMCSR 379, App. A(F)(2)(a) and Note A) You should save all documents that show you were a safe company and that you fully complied with the Federal Motor Carrier Safety Regulations and properly hired, supervised, trained, and retained the driver and maintained the vehicle. More specifically the law states that if you fail to properly secure and preserve this important evidence it will give rise to the legal presumption that the evidence would have been harmful to your side of the case. Further, if you fail to preserve and maintain this evidence, we will seek any sanctions available under the law. The destruction, alteration, or loss of any of the below constitutes destruction of evidence under the Law. We specifically demand that the following evidence, EXHIBITA MOTION FOR SANCTIONS typically used to determine fault in truck wreck cases, be maintained and preserved, and not be destroyed, modified, altered, repaired, or changed in any manner, and further that you immediately put any third party vendor that has or controls this information, material, or documentation, on notice to maintain and preserve without change: 1 The tractor and trailer involved in this collision. 2 Bills of lading for any shipments transported by the driver and co-driver, for the day of the collision and the thirty (30) day period preceding the collision. Any oversized permits or other applicable permits or licenses covering the vehicle or load on the day of the collision. The driver’s complete driver qualification file, as required by 49 C.F.R. 391.51, including but not limited to: a) Application for employment b) CDL license °) Driver’s certification of prior traffic violations d) Driver’s certification of prior collisions e) Driver’s employment history Pre-employment MVR 8) Annual MVR h) Annual review of driver history i) Certification of road test dD Medical examiner’s certificate k) HAZMAT or other training documents In addition please also preserve: + All drug and alcohol testing records of the driver m) All inquiries and responses regarding the driver’s employment history 5 All documents normally used to determine whether a wreck was preventable or non-preventable, whether or not such determination was actually made in this case, to include but not be limited to: a) The driver’s post-collision alcohol and drug testing results. b) Documents used to determine if the driver was on a cell phone or other electronic device at the time of the wreck. c) Documents used to determine whether the driver was texting at the time of the wreck. EXHIBIT A MOTION FOR SANCTIONS d) Driver Log Audit and Violation Reports — Whether paper or electronic, whether daily, weekly, monthly, quarterly, cumulatively, and for all other time periods. e) Reports electronically available through RAIR, JJ Keller, or other services. f) The GPS location data for six months prior to the wreck for the driver. The accident register maintained by the motor carrier as required by federal law for the one (1) year period preceding this collision. (FMCSR 390.15) All OmniTRAC, Qualcomm, MVPC, QTRACS, OmniExpress, TruckMail, TrailerTRACS, SensorTRACS, JTRACS, and other similar systems data for the six (6) months prior to the collision and the day of the collision, for this driver, truck, and trailer. Cargo pickup or delivery orders prepared by motor carriers, brokers, shippers, receivers, driver, or other persons, or organizations for thirty (30) days prior to the date of the collision as well as the day of the collision. Accounting records, cargo transportation bills and subsequent payments or other records indicating billings for transportation or subsequent payment for the transportation of cargo, with both the front and back of cancelled checks for argo transported by the driver and/or truck involved in the collision for thirty (30) days prior to the date of the collision as well as the day of the collision. 10 The entire personnel, discipline, and training files of the driver involved in this collision. 11 All letters, reports, and written material from a government entity involving safety, and safety ratings for the company and driver to include, but not be limited to, Department of Transportation audits by the state or federal government, the Federal Motor Carrier Safety Administration, or material generated on your company or driver pursuant to SAFERSYS or CSA 2010. The request is limited to one (1) year prior to the wreck and any subsequent document, report, letter, or other material (to include electronically transmitted information) that includes the date of the wreck or the driver. 12. The front and back of the driver’s daily logs and his co-driver’s logs (if any) for the day of the collision, and the six month period preceding the collision, together with all material required by 49 C.F.R. 395.8 and 395.15 for the driver(s) involved in the above matter together with the results of any computer program used to check logs as well as all results of any audit of the logs by your company or a third party. This specifically includes any electric on board computers (AOBRD’s, EOBR’s, etc...) and the audit trail for those entries. We require you EXHIBIT A MOTION FOR SANCTIONS to put any vendor which stores or audits this information on notice of the need to preserve this data. 13. All existing driver vehicle inspection reports required under 49 C.F.R. 396.11 for the vehicle involved in the above collision, to include all existing daily inspection reports for the tractor and trailer involved in this collision. 14 All existing maintenance, inspection and repair records or work orders on the tractor and trailer involved in the above collision. 15. All annual inspection reports for the tractor and trailer involved in the above collision, covering the date of the collision. 16. Photographs, video, computer generated media, or other recordings of the interior and exterior of vehicles involved in this collision, the collision scene, the occurrence, or relating to any equipment or things originally located at or near the site of the occurrence. 17. Any lease contracts or agreements covering the driver or the tractor or trailer involved in this collision. 18. Any interchange agreements regarding the tractor or trailer involved in this collision. 19. Any computer data from the tractor or trailer to include but not be limited to: any data and printout from on-board recording devices, including but not limited to the ECM (electronic control module), any on-board computer, tachograph, trip monitor, trip recorder, trip master, Hours of Service (HOS) or other recording or tracking device for the day of the collision and the six (6) month period preceding the collision for the equipment involved in the collision. 20. Any post-collision maintenance, inspection, or repair records or invoices in regard to the tractor and trailer involved in the above collision. 21 Any weight tickets, fuel receipts, hotel bills, tolls, or other records of expenses, to include expense sheets and settlement sheets regardless of type (to specifically include Comdata or similar vendor reports), for the truck driver pertaining to trips taken for the day of the collision and thirty (30) days prior to the collision. 22 Any trip reports, dispatch records, trip envelopes regarding the driver or the tractor or trailer involved in this collision for the day of the collision and the thirty (30) day period preceding this collision. EXHIBITA MOTION FOR SANCTIONS 23. Any e-mails, electronic messages, letters, memos, or other documents concerning this collision. 24 All drivers’ manuals, guidelines, rules or regulations, safety messages, safety and training materials for the safe operation of a tractor trailer given to drivers such as the one involved in this collision. 25 Any reports, memos, notes, logs or other documents evidencing complaints about the driver in the above collision at any time. 26 Any DOT or PSC reports, memos, notes or correspondence concerning the driver or the tractor or trailer involved in this collision. 27 Any and all communications via CB radio, mobile or satellite communication systems, email, cellular phone, pager or other in cab communication device to include the bills for the devices for the day before, the day of, and the two days after the collision. 28 Any and all computer, electronic, or e-mail messages created in the first forty eight hours immediately after the incident, by and between the defendant and any agents or third parties relating to the facts, circumstances, or actual investigation of the incident as well as any computer messages which relate to this particular incident, whether generated or received. 29 If not previously listed, all documents required by Federal Motor Carrier Safety Regulation 395.8, specifically those items identified in the Department of Transportation’s interpretation of the regulation in its Answer to Question 10, a copy of which is attached. 30. Any other items associated in any way with the wreck, documents, database, or other piece of evidence concerning or reflecting upon the driver, the collision, the truck, or the trailer. 31 All correspondence and documents regarding any safety issue for the driver to include but not be limited to the initiation, investigation and final conclusion of any: (1) warning letters, (2) targeted roadside inspections (3) any document that stated the driver was unfit. EXHIBIT A MOTION FOR SANCTIONS 32. All correspondence and documents regarding any safety issue for the company to include but not be limited to the initiation, investigation and final conclusion of: ()) any off-site investigation, (2) any on-site investigation, (3) any cooperative safety plan, (4) any notice of violation, (5) any notice of claim/settlement agreement, (6) any document that stated the company was unfit, and (7) any document that the company was to be subjected to targeted roadside inspections. 33. Any document that found the driver or the company deficient in any BASIC (Behavior Analysis and Safety Improvement Categories) category. 34 The BASIC measurements for the trucking company and driver for the three years prior to the collision. 35. Any correspondence regarding the company or the driver objecting to, or asking for a correction of, any BASIC measurement or FMCSA intervention. 36 The Pre-Employment Screening Program (PSP) report on the driver for each month for the three years prior to the collision. 37 Any documents showing inquiry by the trucking company for any PSP reports of the driver for the three years prior to the collision 38 Copy of the carrier profile maintained by MCMIS (Motor Carrier Management Information System) for the three years prior to the collision. 39 All logs of activity (both in paper and electronic formats) on computer systems and networks that have or may have been used to process or store electronic data containing information about or related to safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, Hours of Service (HOS) data, dispatcher data for this driver(s), this truck, and this trailer. 40 Courts have made it clear that all information available on electronic storage media is discoverable, whether readily readable (“active”) or “deleted” but recoverable. See, e.g., Santiago v. Miles, 121 F.R.D. 636, 640 (W.D.N.Y. 1988; a request for “raw information in computer banks” was proper and obtainable under the discovery rules); Gates Rubber Co. v. Bando Chemical Indus., Ltd., EXHIBIT A MOTION FOR SANCTIONS 167 F.R.D. 90, 112 (D. Colo. 1996; mirror-image copy of everything on a hard drive “the method which would yield the most complete and accurate results,” chastising a party’s expert for failing to do so); and Northwest Airlines, Inc. v. Teamsters Local 2000, 163 L.R.R.M. (BNA) 2460, (USDC Minn. 1999); court ordered image-copying by Northwest’s expert of home computer hard drives of employees suspected of orchestrating an illegal “sick-out” on the Internet). Accordingly, electronic data and storage media that may be subject to our discovery requests and that your client(s) are obligated to maintain and not alter or destroy, include but are not limited to the following: Introduction: description of files and file types sought a. All digital or analog electronic files, including “deleted” files and file fragments, stored in machine-readable format on magnetic, optical or other storage media, including the hard drives or floppy disks used by your computers and their backup media (e.g., other hard drives, backup tapes, floppy disks, DVD’s, Jaz cartridges, CD-ROMs, etc.) or otherwise, whether such files have been reduced to paper printouts or not. More specifically, you are to preserve all of your e-mails, both sent and received, whether internally or externally; all word-processed files, including drafts and revisions; all spreadsheets, including drafts and revisions; all databases; all CAD (computer-aided design) files, including drafts and revisions; all presentation data or slide shows produced by presentation software (such as Microsoft PowerPoint); all graphs, charts and other data produced by project management software (such as Microsoft Project); all data generated by calendaring, task management and personal information management (PIM) software (such as Microsoft Outlook or Lotus Notes); all data created with the use of personal data assistants (PDAs), such as Palm Pilot, HP Jornada, Cassiopeia or other Windows CE-based or Pocket PC devices; all data created with the use of document management software; all data created with the use of paper and electronic mail logging and routing software; all Internet and Web-browser-generated history files, caches and “cookies” files generated at the workstation of each employee and/or agent in your employ and on any and all backup storage media; and any and all other files generated by users through the use of computers and/or telecommunications, including but not limited to voice mail. Further, you are to preserve any log or logs of network use by employees or otherwise, whether kept in paper or electronic form, and to preserve all copies of your backup tapes and the software necessary to reconstruct the data on those tapes, so that there can be made a complete, bit-by-bit “mirror” evidentiary image copy of the storage media of each and every personal computer (and/or workstation) and network server in your control EXHIBIT A MOTION FOR SANCTIONS and custody, as well as image copies of all hard drives retained by you and no longer in service, but in use at any time from June 3, 2021 to the present. You are also not to pack, compress, purge or otherwise dispose of files and parts of files unless a true and correct copy of such files is made. You are also to preserve and not destroy all passwords, decryption procedures (including, if necessary, the software to decrypt the files); network access codes, ID names, manuals, tutorials, written instructions, decompression or reconstruction and any and all other software, information and things necessary to access, view and (if necessary) reconstruct the electronic data we will request through discovery. Business Records: All documents and information about documents containing backup and/or archive policy and/or procedure, document retention policy, names of backup and/or archive software, names and addresses of any offsite storage provider. Online Data Storage on Mainframes and Minicomputers: With regard to online storage and/or direct access storage devices attached to your mainframe computers and/or minicomputers: they are not to modify or delete any electronic data files, “deleted” files and file fragments existing at the time of this letter’s delivery, which meet the definitions set forth in this letter, unless a true and correct copy of each such electronic data file has been made and steps have been taken to assure that such a copy will be preserved and accessible for purposes of this litigation. Offline Data Storage, Backups and Archives, Floppy Diskettes, Tapes and Other Removable Electronic Media: With regard to all electronic media used for offline storage, including magnetic tapes and cartridges and other media that, at the time of this letter’s delivery, contained any electronic data meeting the criteria listed above: You are to stop any activity that may result in the loss of such electronic data, including rotation, destruction, overwriting and/or erasure of such media in whole or in part. This request is intended to cover all removable electronic media used for data storage in connection with their computer systems, including magnetic tapes and cartridges, magneto-optical disks, floppy diskettes and all other media, whether used with personal computers, minicomputers or mainframes or other computers, and whether computer systems. 41. All e-mails, and information about e-mails (including message contents, header information and logs of e-mail system usage) sent or received by the driver and EXHIBIT A MOTION FOR SANCTIONS co-driver involved in the collision for period of time involving the collision and the seven (7) days before and after the collision. 42 All other e-mail and information about e-mail (including message contents, header information and logs of e-mail system usage) containing information about or related to company safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. 43. All databases (including all records and fields and structural information in such databases), containing any reference to and/or information about or related to company safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. 44 All electronic documents and the storage media on which they reside which contain relevant, discoverable information beyond that which may be found in printed documents. Therefore, even where a paper copy exists, we will seek all documents in their electronic form along with information about those documents contained on the media. We also will seek paper printouts of only those documents that contain unique information after they were printed out (such as paper documents containing handwriting, signatures, marginalia, drawings, annotations, highlighting and redactions) along with any paper documents for which no corresponding electronic files exist. Our discovery requests will ask for certain data on the hard disks, floppy disks and backup media used in your computers, some of which data are not readily available to an ordinary computer user, such as “deleted” files and “file fragments.” As you may know, although a user may “erase” or “delete” a file, all that is really erased is a reference to that file in a table on the hard disk; unless overwritten with new data, a “deleted” file can be as intact on the disk as any “active” file you would see in a directory listing. 45, All word processing files, including prior drafts, “deleted” files and file fragments, containing information about or related to safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. 46 With regard to electronic data created by application programs which process financial, accounting and billing information, all electronic data files, including prior drafts, “deleted” files and file fragments, containing information about or related to safety and safety policies, the collision, the driver(s), the truck, the EXHIBIT A MOTION FOR SANCTIONS trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. AT All files, including prior drafts, “deleted” files and file fragments, containing information from electronic calendars and scheduling programs regarding or related to safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. 48 All electronic data files, including prior drafts, “deleted” files and file fragments about or related to safety and safety policies, the collision, the driver(s), the truck, the trailer, witnesses to the collision, the plaintiff(s), the load, the facts of the collision, preventability determinations, GPS data, dispatcher data for this driver(s), this truck, and this trailer. 49 Replacement of Data Storage Devices: You or your agents are not to dispose of any electronic data storage devices and/or media that may be replaced due to failure and/or upgrade and/or other reasons that may contain electronic data meeting the criteria listed above. 50. Fixed Drives on Stand-Alone Personal Computers and Network Workstations: With regard to electronic data meeting the criteria listed above, which existed on fixed drives attached to stand-alone microcomputers and/or network workstations at the time of this letter’s delivery: You are not to alter or erase such electronic data, and not to perform other procedures (such as data compression and disk defragmentation or optimization routines) that may impact such data, unless a true and correct copy has been made of such active files and of completely restored versions of such deleted electronic files and file fragments, copies have been made of all directory listings (including hidden files) for all directories and subdirectories containing such files, and arrangements have been made to preserve copies during the pendency of this litigation. 51 Programs and Utilities: You are to preserve copies of all application programs and utilities, which may be used to process electronic data covered by this letter. 52 Log of System Modifications: You are to maintain an activity log to document modifications made to any electronic data processing system that may affect the system’s capability to process any electronic data meeting the criteria listed above, regardless of whether such modifications were made by employees, contractors, vendors and/or any other third parties. EXHIBIT A MOTION FOR SANCTIONS 53. Personal Computers Used by Your Employees and/or Their Secretaries and Assistants: The following steps should immediately be taken in regard to all personal computers used by your employees and/or their secretaries and assistants: a. As to fixed drives attached to such computers: (i) a true and correct copy is to be made of all electronic data on such fixed drives relating to this matter, including all active files and completely restored versions of all deleted electronic files and file fragments; (ii) full directory listings (including hidden files) for all directories and subdirectories (including hidden directories) on such fixed drives should be written; and (iii) such copies and listings are to be preserved until this matter reaches its final resolution. b. All floppy diskettes, magnetic tapes and cartridges, and other media used in connection with such computers prior to the date of delivery of this letter containing any electronic data relating to this matter are to be collected and put into storage for the duration of this lawsuit. 54 Evidence Created Subsequent to This Letter: With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not be destroyed and you are to take whatever steps are appropriate to avoid destruction of evidence. In order to assure that your obligation to preserve documents and things is met, please immediately forward a copy of this letter to all persons and entities with custodial responsibility for the items referred to in this letter, to specifically include third parties and vendors. In regard to the tractor and trailer involved in this collision, we would like to set up a mutually convenient time for our expert to inspect, examine, and conduct tests on the unit. We specifically request that you make no repairs or adjustments to the tractor or trailer until this inspection is completed. Please contact us to discuss the scheduling of an inspection. We request a non-destructive examination of the interior and exterior of the truck and trailer specifically including, but not limited to, access to the subject vehicle for inspection, and that you permit the following: 1. Provide access to the vehicle to include the ignition key and other keys or access codes as may be necessary to examine the truck and trailer, their mechanical components, storage compartments and allow recording or downloading of mechanical or electronic on-board recording Electronic Control Module (ECM) or Event Data Recorder (EDR) commonly known as a “black box” or any other computer or data link of the subject vehicle to include but not EXHIBIT A MOTION FOR SANCTIONS be limited to devices such as Cummins Celect™, Cummins Quik-Link®, NEXIQ Pro-Link®, Detroit Diesel Pro Driver®, Detroit Diesel DDEC II® & DDEC IV®, Caterpillar Fleet Information System®, Caterpillar ADEM® or any similar device (if your vehicles are so equipped). Provide access to the vehicle to start the engine, charge the air reservoirs and allow brake system examination and testing. If the vehicle’s engine cannot be started or the air brake system has been compromised so it will not retain air pressure, remote air pressure supply may be used to charge the system for examination and testing. Air pressure supply lines and air pressure gauges may be inserted at points that will not change adjustment of the foundation brakes of the subject vehicle. The vehicle may be moved or lifted onto portable scales for the purpose ascertaining the vehicle weight after the black box is downloaded. Items of evidence located that may be lost, contaminated or destroyed will be identified, photographed and turned over to appropriate representatives of the parties using reasonable evidence storage practices. Accordingly, please contact my office to arrange for a mutually convenient time for the examination of the subject truck. If the subject truck is not under the control of Swift Transportation, please provide information as to its last known whereabouts, and take all reasonable measures to ensure its preservation. Also, if the subject truck and trailer is no longer under the control of Swift Transportation, then please provide a similar model which is similarly configured for purposes of examination. As we do not represent you, I strongly urge you to consult your own lawyer, in addition to any lawyer with divided loyalties an insurance company might provide, as soon as possible to have these matters, and your rights, fully explained to you. Sincerely, /S/VINCENT BRUNER ATTORNEY AT LAW