One Night in November, Part 9: The iPhone

This is the final post of this series, so I close with the topic that was most enjoyable to me during the case.

For context, I see certain parallels between litigation and hunting.  Hunting requires patience.  Take your shot too soon, while the probability of success is lower, and you risk accomplishing nothing but alerting the prey of your presence and strategy.  This allows the prey to modify its strategy for escape or, in some circumstances, turn the hunter into the hunted.  However, if you wait for the perfect shot, you risk missing the opportunity because no shot is perfect or risk-free.  Instead, the hunter waits for the optimal shot under the circumstances.  The hunter is not waiting for a shot, the hunter is waiting for the shot.  Distinguishing the two requires patience, time, and the experience of many missed shots.  Even then, a shot for one hunter may be the shot for another.

In litigation, I believe too many hunters take too many shots too early.  Those taking these shots defend them as part of “zealous advocacy” or “aggressive representation.”  I disagree.  Zealous advocacy and aggressive representation do not mean flailing around half-cocked.  Know when to take your shot and also when a particular shot is not worth taking.[1]

Applied to my case, Driver had a spoliation argument against Pedestrian.  We could have taken a shot at a variety of points, but the clients agreed with me that those shots were not the shot.  Deciding when to take the shot is usually subjective, creating room for disagreement, but in these circumstances I believe our shot was timed as well as we could have made it.

The Hunt Begins: Pedestrian’s iPhone was not preserved.

Pedestrian was carrying an iPhone when this accident occurred.  NHP found it at the scene along with a set of ear buds.  As soon as Pedestrian hired Opposing Counsel, I personally and expressly instructed them, in writing, to preserve it.  They didn’t.  The consequence is that evidence about what Pedestrian was doing on the roadway was lost.  But when to take this shot to argue spoliation?

  • Father’s response to written discovery for the iPhone.

Once discovery opened, I sent a request for production that specifically asked to inspect the iPhone that I had requested be preserved.  Father responded “not in possession, returned to cellular service provider.”[2]  Pedestrian’s later interrogatory response indicated “account subscriber [JV] may have surrendered to T-Mobile, condition unknown, surrender date unknown, sometime after [date of death].”

Shot Analysis:  Did Driver have a shot based upon this response alone?  Yes, and I suspect many would have pulled the trigger at this point.  I didn’t.  Merely losing the iPhone was insufficient by itself to merit a spoliation remedy.  Instead, a party seeking such a remedy must first show that the missing evidence existed.  The iPhone itself was not the evidence I wanted; it was the data the iPhone contained.  At this point all I knew was the iPhone was not preserved, but had scant information about what data it may have contained.  That would have been an easy distinction for a judge or appellate court to make.

We concluded this was a shot, but not the shot.  If nothing else changed in the case, we could still try it, but we wanted a higher percentage shot.  So we started a course of discovery we hoped would improve our chances.  The idea was to establish a chain of custody and whether the iPhone was operable after the collision.

  • Step 1: NHP found the iPhone at the scene.

NHP found the iPhone at the scene.  NHP’s investigation documented not only where the phone was found at the scene, but photographed its condition.  The lead investigator testified:

13           Q.     Do you remember how the phone appeared,
14   meaning other than being white?  Did it appear to be broken?
15   New?  Anything like that?
16           A.     I know there’s a photo of it.  I don’t recall
17   it being broken, such as the screen.  But we didn’t go
18   poking at it trying to turn it on or get any information out
19   of it.
20           Q.     That was my next question.
21                  As far as you know, at the scene, were you
22   able to ever turn it on?
23           A.     No, sir.  Not that I recall.
24           Q.     Did you keep the cell phone as evidence for
25   your investigation?
1           A.     No, sir.  That phone was given over to the
2   coroner as personal property of the decedent.

As to the ear buds found at the scene, he noted they were a potentially relevant clue about what happened.

22           Q.     Also, in that scene, if I continue down, you
23   wrote:
24                       “There was a set of white headphones
25                  tangled with the clothing.”
1                  Were the headphones significant at all in
2   your investigation?
3           A.     Sir, it was just a clue that possibly with
4   the phone, plus the headphones, perhaps he was listening to
5   music and may not have heard approaching traffic or things
6   of that nature.
7           Q.     Without turning on the cell phone, was there
8   any way for you to evaluate that possibility even further?
9           A.     No, sir.

Shot Analysis:  The goal for this questioning was to establish a chain of custody for the iPhone and to assess whether the iPhone was still able to function after the accident.  If it was demonstrably inoperable, then Father’s failure to keep it may not have made a difference.  NHP’s testimony merely established that the iPhone was found at the scene and transferred to the coroner.  A shot was still available, but it was not much better than Driver already had.

  • Step 2: The coroner took possession of the iPhone.

The Clark County Coroner’s office arrived on scene and took possession of the iPhone from NHP.  The coroner was not able to power on the iPhone.  It remained in the coroner’s possession until legal next of kin retrieved it.

Shot Analysis:  This deposition was part of the chain of custody.  The iPhone went from Pedestrian to NHP and then the coroner.  Still no one was able to power it on.  This deposition was the next link in the chain of custody, but did not improve the shot much.

  • Step 3: AC confirmed it was Pedestrian’s iPhone.

In the month before his death, Pedestrian was living with AC.  She described how he suffered from ongoing seizures and that prevented him from getting a driver’s license.  Before Pedestrian died, he was working at a fast food restaurant on the complete opposite end of the valley from where he lived.  To get to work, he would either take the bus or AC would drive him.

AC also confirmed that Pedestrian had an iPhone.  She knew that he had music on his phone and his social media apps.  She knew that he was an active user of at least three social media services:  Facebook, Snapchat, and Twitter.  They were Facebook friends, which enabled her to see his posts.  He used Facebook every couple of days, typically posting pictures, where he was at, or what he was eating.  She was also his friend on Snapchat and could see photographs he posted.  He was an active Snapchat user, posting daily.  He also used Instagram, where he and AC were also linked so she could see his posts.

AC last saw Pedestrian alive the day before he died.  She last spoke to him, via telephone, a couple hours before he died.

14           A.     He had called me telling me that he was at
15   the hospital and for me to pick him up.
16           Q.     Was it possible for you to go pick him up at
17   that time?
18           A.     No.
19           Q.     Why not?
20           A.     I was sick with a cold, and I took NyQuil.
21           Q.     Did you believe that it was safe for you to
22   drive at that point?
23           A.     No.
24           Q.     What did you tell [Pedestrian] to do?
25           A.     I told him to stay at the hospital, and I
1   would pick him up in the morning.
2           Q.     Did he say what he was going to do?
3           A.     He said he was going to stay at the
4   hospital.

AC did not have any information about what Pedestrian did between that final phone call and his death.  She did know that he would carry at least enough cash on him to afford a bus fare.

The next morning she was getting ready for work when the coroner came to the condominium and informed her of Pedestrian’s death.

16           Q.     What did you do next?
17           A.     I told her I didn’t believe her, and I
18   wouldn’t let her in.  But after a couple of minutes, I let
19   her come in.
20                  She sat down at my table, and she was asking
21   how I knew him, how long he was here, if he had his phone —
22   or a charger for his phone since his phone was dead.
23           Q.     Did the coroner, the woman who came to the
24   condo, did she have the phone?
25           A.     Yes.
1           Q.     The coroner who came to the condo had a
2   phone.  Was the phone on?
3           A.     No.
4           Q.     So the battery was dead?
5           A.     It was dead.  Yeah.
6           Q.     Were you able to find [Pedestrian]’s charger?
7           A.     No.
8           Q.     Were you and the coroner able to find any
9   charger at all to charge his phone at that point?
10           A.     No.
11           Q.     Did you actually get to see the phone?
12           A.     Yes.  And —
13           Q.     At that point — I interrupted you.  I’m
14   sorry.
15                  When the coroner was at your condo, did you
16   actually get to see the phone?
17           A.     Yes.
18           Q.     Can you describe its condition for me?
19           A.     It looked fine, perfectly fine.

5           Q.     Was that the last time you saw [Pedestrian]’s
6   phone?
7           A.     Yes.
8           Q.     Did anyone ever tell you that they were able
9   to find a charger and turn it on?
10           A.     No.

AC never had to visit the coroner’s office.  Two days later she met Father at the condominium, but the visit generated no further information about the iPhone.

18           Q.     You saw [Father] at your condo.  Did he
19   talk about [Pedestrian]’s phone at all?
20           A.     No.
21           Q.     Do you know if he had it?
22           A.     No.
23           Q.     Do you know what happened to [Pedestrian]’s phone
24   after the last time you saw it with the coroner?
25  No.

Shot Analysis:  This deposition helped continue and confirm the chain of custody.  It also helped establish the probability that relevant evidence existed on the iPhone.  Given Pedestrian’s frequent social media posts, there was at least an argument the iPhone may have contained data concerning what Pedestrian was doing between hospital discharge and his death, as well as what he was doing in the moments before the accident.  AC had no personal knowledge indicating the iPhone was inoperable, but testimony from someone saying it worked would be helpful to show the ease with which the information could be retrieved.

AC’s deposition improved the shot’s probability, and perhaps some would have taken it at this point, but there were still more discovery pending so we chose to wait.

  • Step 4: Father denied he ever possessed the iPhone.

Remember, as to the iPhone, Father’s discovery responses stated “not in possession, returned to cellular service provider” and “account subscriber [JV] may have surrendered to T-Mobile, condition unknown, surrender date unknown, sometimes after [date of death].”  About that…

Father’s last contact with Pedestrian was a series of text messages that Father saved on his own phone.  Father came to Las Vegas the day after Pedestrian’s death.  When he arrived he went to see AC.  After that he went to the coroner’s office, identified himself, and was told what happened.  The coroner then released to Father the personal effects that had been gathered from Pedestrian.  However, Father specifically denied receiving the iPhone.

11 Q. Did they give you a phone?
12 A. No.
13 Q. Did [Pedestrian] — we know from your text
14 messages with him he had a phone on him, at least the
15 night he — when he had the seizure.
16 A. Right.
17 Q. Do you know what became of that phone?
18 A. It was returned back to the store. It
19 wasn’t paid off.
20 Q. Okay. Who — who returned it to the store?
21 A. The name is —
22 Q. Is that [JV]?
23 A. [JV]. Yes.

3 So [Pedestrian] dies. And then at some point, she
4 gets the phone.
5 How did she get the phone? Do you know?
6 A. I don’t know.
7 MR. [Opposing Counsel]: Foundation.
9 Q. Was the phone ever released to you?
10 A. No.
11 Q. Did you ever see his phone after he died?
12 A. No.
13 Q. After you were done at the — well, is there
14 anything else that you did at the coroner’s office?
15 A. No.

For those playing the home game, Father testified he never had Pedestrian’s phone.  But I had the coroner’s inventory of personal effects, which included the iPhone.  Father later admitted in responses to request for admissions that his signature appeared on that inventory of personal effects.  “Plaintiff amends his response to admit the signature appears to be his signature on document [sic], however Answering Plaintiff is not in possession of cellular phone and upon information and belief it was given to [JV].”  Father now had a problem in that he denied in deposition receiving the iPhone, but admitted signing the inventory indicating that he received the iPhone.  Rut-roh.

The timeline of events created a bigger problem, which will be discussed in more detail later.  While Father was in Las Vegas, he made an appointment to talk to a person who he believed was Company’s head of security, but never went to the appointment.  He had second thoughts and instead hired Opposing Counsel at some point during the three days he was in Las Vegas.

Father’s testimony as to a meeting with Company was substantively consistent with Company Risk & Claim Director, who testified that he spoke with Father via telephone the day after the accident. Company Risk & Claim Director invited Father to meet and discuss what happened, but Father never came.  Although a date and time were arranged and Company Risk & Claim Director even received a telephone call indicating that Father was on his way, Father never showed up.  Instead Company Risk & Claim Director received a call from Opposing Counsel on Father’s behalf.

Shot Analysis:  These facts improved the shot.  Which time did Father tell the truth?  It couldn’t be both.  Yes, the shot was improving but there were still opportunities to continue improving it.  Besides, Father supposedly never saw the phone powered on.  There may have been data on the iPhone, but I’m still looking for testimony about whether the iPhone was still operable.

  • Step 5: JV was the last person to possess the iPhone.

JV was one of Pedestrian’s friends.  Eight months before his death, she helped him get an iPhone 6 and join her service plan.  JV was also a Facebook friend with Pedestrian.  She would see a post from him at least every morning.

19 Q. When — after the — after his death, when
20 did you see the phone next?
21 A. I think she came and dropped it off a
22 couple days after he died.
23 Q. Who?
24 A. [AC].
25 Q. Okay. [AC] dropped it off to you?
1 A. Yes.
2 Q. Approximately how many days later?
3 A. Probably about two.
4 Q. What did you do with the phone when she
5 dropped it off?
6 A. I looked through the texts to see what —
7 if he had texted anybody that night.
8 Q. So when —
9 A. But the only text that I saw was to his
10 best friend. And she was just — he was saying that he
11 was at the hospital, and that’s it. And then there was
12 no communication after that, and I think it was because
13 his phone died.

JV testified the phone looked fine and she saw no damage to it.  Although the phone had some battery problems before the accident, she was able to power the phone on and was able to go through his text messages.  She found that Pedestrian had texted with a friend about being in the hospital that night.  She also saw a text message chain with Father.  A few months later, she sold the iPhone and did not know what became of it.  There was no indication she was ever asked to preserve it.

Shot Analysis:  Ta-da!  1) JV testified she got the iPhone from AC, which conflicted with AC’s testimony that she never had possession of it; 2) JV was able to power the iPhone on and confirmed data were present on it; 3) JV’s version of events also conflicted with Father; and 4) JV was never asked to preserve the iPhone.

Picking Your Shot

Spoliation of evidence is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[3]  A spoliation remedy requires some degree of culpability.[4]  “The party seeking spoliation sanctions has the burden of establishing the elements of a spoliation claim.”[5]  The party seeking sanctions has the “burden to make a prima facie showing that this evidence existed.  …  One of the elements of a spoliation claim is that the party must demonstrate the evidence actually existed and was destroyed.”[6]

Applied here, multiple sources of evidence all indicated 1) Pedestrian had the iPhone with him when the accident happened; 2) it survived the accident; 3) it was able to be powered on; and 4) contained at least some data relevant to Pedestrian’s activities that night.  Even better, Driver could argue Father chose not to preserve critical evidence relevant to the claims asserted.

But a word of caution: before taking any shot, the hunter must also consider where the bullet may ultimately come to rest.  If the bullet misses the target or passes through it, what is downrange?  Will the bullet strike something that could cause it to ricochet into something else?  Think of A Christmas Story.  Ralphie shot a BB at bull’s-eye on a metal target.  The metal was stronger than the BB, so the BB ricocheted back at him, knocking off his glasses.[7]

Applied to this circumstance, I drafted the motion by anticipating how it could be opposed in hopes that this would limit the potential for a ricochet.

  • The iPhone was a smart phone and contained relevant evidence.

The first argument may have been the iPhone did not contain evidence relevant to the case.  But based upon JV’s testimony and Father’s own text message chain with Pedestrian, it was apparent the iPhone contained at least some electronic evidence of Pedestrian’s activities the night he died.  Some may have stopped there.  But I wanted more.  I didn’t want to pull the trigger on a .22; I wanted to pull the trigger on a howitzer.[8]  So I argued it was probable the iPhone contained much more information relevant to the claims and defenses at issue in this lawsuit.

Conveniently, the United States Supreme Court has taken an interest in these devices in the last few years and provided all the background I could need.  An iPhone is a “‘smart phone,’ a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.”[9]  These phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”[10]  “Cell phones … place vast quantities of personal information literally in the hands of individuals.”[11]

The phrase “cell phones” is somewhat misleading; “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”[12]  In 2014, the “top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.”[13]

These troves of data can be quite informative.

An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns….  Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.[14]

“[I]t is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.”[15]

Specific to this case, the iPhone’s information about Pedestrian’s usage and locations in the moments before his death were critical evidence to Driver’s argument that Pedestrian was either the sole cause of the accident or comparatively negligent.  The iPhone and Pedestrian himself were the only potential sources of this evidence.  Pedestrian could not be asked what he was doing, and nor could the iPhone due to Father’s decision not to preserve it.

  • Father had notice of the iPhone’s relevance.

Typically qualifying for a spoliation remedy “is tied to a showing that the party controlling the evidence had notice that it was relevant at the time when the evidence was lost or destroyed.  In other words, … the threshold question should be whether the alleged spoliator was under any obligation to preserve the missing or destroyed evidence.”[16]  This “duty to preserve evidence is imposed once a party is on ‘notice’ of a potential legal claim.”[17]  Generally, “a party is on notice when litigation is reasonably foreseeable.”[18]

In this case, Father knew of the potential for litigation no later than when he first hired counsel during the three days after Pedestrian’s death.  “Because a potential plaintiff has absolute control over whether to file a lawsuit and which theories of recovery he or she chooses to allege, it is perfectly appropriate to impose a duty to preserve evidence and impose sanctions in connection with its loss or destruction.”[19]  Once the duty arises, “a party is required to preserve documents, tangible items, and information relevant to litigation that are reasonably calculated to lead to the discovery of admissible evidence.”[20]

During those three days that Father was in Las Vegas, the iPhone still existed and passed from the coroner into his possession.  While there were factual inconsistencies as to what he did with the iPhone after that, but there was no dispute that Father did not preserve it.

Then I used Father’s own actions to turn the hunter (Pedestrian/Father) into the hunted.  I argued there could be no dispute that Father was aware of his obligation to preserve evidence.  During his meeting with Opposing Counsel at some point during that three day period, presumably the day after the death based upon Company Risk & Claim Director’s testimony, Opposing Counsel was obligated to expressly advise Father of his obligation to preserve evidence.  “The preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.”[21]

Why make this argument?  Divide and conquer.  One way to defend against a spoliation request is to argue the party possessing it had no knowledge of its relevance.  But Father met with Opposing Counsel the day after the death.  Opposing Counsel was required to advise Father of his obligations to preserve evidence.  This created the scenario where the only viable way for Father to escape was to claim Opposing Counsel never told him to preserve it.  To avoid a malpractice claim, Opposing Counsel would need to refute that allegation.  If you can get your adversaries to turn their guns on each other, you are probably going to be in a better position.

Word to your moms, I came to drop bombs.[22]

When seeking spoliation remedies, lawyers tend to overreach.  The vast majority of cases merit minor sanctions or, at most, an adverse inference.  But here, I believed there was a factual basis to go for the kill (dismissal).

  • Spoliation remedies were appropriate.

I argued Father’s decision not to preserve the iPhone denied Driver access to the only potential source of evidence about Pedestrian’s activities in the moments before the accident.  These activities were critical evidence.  Pedestrian alleged Driver negligently drove Vehicle and caused the accident.  But Driver alleged Pedestrian was the sole cause of this accident.  Although Pedestrian disputed it, NHP’s investigation concluded that Pedestrian was walking northbound in the northbound travel lane that Driver was also using.  Why was Pedestrian there?  What was he doing?  Why did he not hear and see Vehicle approaching?  Pedestrian’s own accident reconstruction expert concluded there was no lateral component to Pedestrian’s movement at the moment of impact.  This means he was not attempting to dive out of the way when the accident happened.  If so, and he heard or saw Vehicle approaching, why did he not save himself?

There were only two sources of evidence available that could shed light on these questions and evaluate Pedestrian’s actions:  1) Pedestrian himself; and 2) the iPhone.  Both were gone, but the iPhone was gone because Father chose not to preserve it.

Spoliation remedies “should be carefully fashioned to deny the wrongdoer the fruits of its misconduct yet not interfere with that party’s right to produce other relevant evidence.”[23]  We sought various remedies to address the damage Father’s decision caused.

  • Dismiss the complaint, with prejudice.

Father’s signature on the coroner’s inventory documented that he received possession of Pedestrian’s iPhone.  He met with and retained counsel, likely the day after Pedestrian’s death.  Opposing Counsel had a duty to inform Father of his own duty to preserve evidence.  Somehow JV later received possession of it, was able to power it on, review its and contents, and had it for months before selling it.  At a minimum, Father’s preservation efforts as to the iPhone were negligent.  The iPhone and the critical evidence it likely contained were lost, which prejudiced Driver.

However, the sequence of events relevant to the iPhone inferred something far worse:  Father destroyed evidence with intent to harm.  He 1) possessed the iPhone; 2) knew it contained some information about that night based upon his own text messages with Pedestrian; 3) met with a Opposing Counsel, the day after Pedestrian’s death, who was obligated to tell him to preserve evidence; and then 4) did not preserve the iPhone; 5) despite my express request that he do so.  These facts go to the very heart of the judicial system and arguably indicated Father destroyed evidence to subvert the system’s truth seeking function.

“The dismissal of a case, based upon a discovery abuse such as the destruction or loss of evidence, ‘should be used only in extreme situations; if less drastic sanctions are available, they should be utilized.’”[24]  Father’s actions merited the extreme remedy of dismissal with prejudice.  In Nevada, getting this remedy requires applying the Young v. Johnny Ribeiro Building factors to the established facts of this case.[25]

The offending party’s degree of willfulness.  As described, the sequence of events concerning the iPhone indicated Father knew of the iPhone’s relevance.  He hired a lawyer who was obligated to inform him of the duty to preserve evidence and then chose not to fulfill that duty.

Would the non-offending party [Driver] be prejudiced by a lesser sanction?  Driver alleged Pedestrian’s actions were the sole cause of this accident.  The data on the iPhone may have made facts relevant to that defense more or less probable.  Pedestrian had already expressed their intent to ask that Driver’s liability experts be excluded for allegedly inadequately supported opinions.  In effect, Pedestrian argued that Driver’s liability experts lacked sufficient information or analysis to present reliable and admissible opinions.  Yet, if so, that was because the very data that may have definitively resolved that dispute was on the iPhone that Father decided not to preserve.

The severity of dismissal relative to the severity of the abusive conduct.  We acknowledged dismissal can be a severe sanction, but argued the severity of the conduct at issue merited it.  Father 1) possessed the iPhone; 2) knew it contained some information about that night based upon his own text messages with Pedestrian; 3) met with a lawyer, the next day, who was obligated to tell him to preserve evidence; and then 4) did not preserve the iPhone; 5) despite my express request that he do so.  Whatever evidence the iPhone contained was gone, forever, because Father chose not to preserve it.

Whether evidence has been irreparably lost. This factor was undisputed as Father’s own discovery responses and JV’s testimony confirmed the iPhone and its data had been irreparably lost.

The feasibility and fairness of alternative and less severe sanctions.  Alternative, less severe sanctions were feasible, but were simply unfair.  Pedestrian planned to attack Driver’s liability defense as unsupported.  Yet Father was the very person who decided not to preserve the only source of critical evidence that could have shed light upon these defenses.

The policy favoring adjudication on the merits.  Nevada does have a generalized policy favoring decision on the merits, but Father’s decision not to preserve the iPhone prevented adjudication on the merits.  The data on the iPhone were the merits of Driver’s liability position.  The data may have supported either party, but no one could ever know, meaning the merits of this case would never be reached.

Do the sanctions unfairly penalize the party for the misconduct of counsel?  I do not think this factor is actually valid anymore.[26]  Regardless, if valid, the attorney-client privilege prevented Driver from knowing what happened during that initial meeting between Father and Opposing Counsel.  The privilege also prevented Driver from knowing what happened after I expressly requested that the iPhone be preserved.  All that was known was Opposing Counsel had a duty to inform Father of his preservation obligations and that Father did not preserve the iPhone.

Typically whatever happened between a client and his lawyer remains solely between them.  However, the attorney-client privilege cannot be used both as a sword and a shield.[27]  Father could not argue the court should not punish him for purported misconduct of counsel but withhold evidence supporting that argument based upon privilege.  Ultimately I didn’t care what, if anything, happened between Father and Opposing Counsel because, regardless, Father still chose not to preserve the iPhone and its data.

The need to deter both the parties and future litigants from similar abuses.  We argued allowing Pedestrian’s suit to continue after destroying this evidence would condone Father’s decision not to preserve the only remaining source of evidence that could shed light upon the critical facts about what Pedestrian was doing in the moments before he died and why he was where he was.

  • If dismissal was not merited, a jury instruction was.

Short of dismissal, I requested two remedies that would work in conjunction.  The first part was a jury instruction.  Nevada recognizes at least two different jury instructions that may be utilized when spoliation occurs.  One of the instructions concerns willful acts and creates a rebuttable presumption “[t]hat evidence willfully suppressed would be adverse if produced.”[28]  Bass-Davis stated “willful or intentional spoliation of evidence requires the intent to harm another party through the destruction and not simply the intent to destroy evidence.”[29]  If this intent is established it is the spoliator’s burden to establish the destroyed evidence was not unfavorable.[30]

“The NRS 47.250(3) presumption … applies only in cases involving willful suppression of evidence, in which the party destroying evidence intends to harm another party, i.e., to obtain a competitive advantage in the matter.”[31]  “Before a rebuttable presumption that willfully suppressed evidence was adverse to the destroying party applies, the party seeking the presumption’s benefit has the burden of demonstrating that the evidence was destroyed with intent to harm.”[32]

The alternative instruction Bass-Davis recognized is a permissible inference.  “[A] permissible inference that missing evidence would be adverse applies when evidence is negligently lost or destroyed.”[33]  “An inference is permissible, not required, and it does not shift the burden of proof.”[34]

Applied here, at a minimum the permissible inference instruction was merited.  Father’s signature on the coroner’s inventory indicated he received possession of Pedestrian’s iPhone.  He met with and retained counsel, likely the day after Pedestrian’s death.  Counsel had a duty to inform Father of his own duty to preserve evidence.  Somehow JV later received possession of the iPhone, turned it on, reviewed its contents, and had it for a period of months before selling it.  At a minimum, Father’s preservation efforts as to the iPhone were negligent.  The iPhone and the critical evidence it likely contained was lost, which prejudiced Driver.  The adverse inference instruction was appropriate based upon these facts.

  • The opinions from Accident Recon should have been limited.

Why just fire one howitzer when you can fire a battery of them?  Once howitzer 1 fires, the prey knows you have artillery so there is nothing to gain by holding the others back.  In that spirit, I argued that, in addition to the jury instructions, Accident Recon’s opinion testimony should be limited in certain aspects as a consequence of Father’s failure to preserve the iPhone.

The parties disputed where Pedestrian was on the roadway when this accident happened.  NHP concluded he was in the middle of the northbound travel lane.  Accident Recon disagreed and argued “[t]here is no evidence supporting [Driver]’s statement that [Pedestrian] was walking within the travel lane at the time of impact.”  Accident Recon noted NHP’s conclusion, but argued “there is no physical evidence to support this assumption.”  Accident Recon subsequently issued a report relying upon the GPS data from Vehicle to help determine the vehicle’s location.  He also criticized Driver’s own experts’ opinions as “grounded in the erroneous assumption that [Pedestrian] was walking in the northbound travel lane of [road].  As discussed above, there is no scientifically reliable evidence to support this assertion.”

We disputed that, but, if Accident Recon was correct, then the lack of scientifically reliable evidence was a result of Father’s decision not to preserve the iPhone.  Accident Recon gave great weight to the GPS data obtained from Vehicle, so presumably he would also have given great weight to the GPS data that I hoped to retrieve from Pedestrian’s iPhone.[35]  This GPS data may have then been sufficient to evaluate where Pedestrian was on the roadway in the moments before the collision.  I argued it was fundamentally unfair to allow Accident Recon to claim there is no scientifically reliable data on this point when, if so, it was because Father failed to preserve that evidence.  I asked that, as a consequence, that Accident Recon be barred from disputing that Pedestrian was walking in the northbound travel lane when the accident occurred.

My howitzers weren’t done yet.  As discussed in a prior post, Driver designated PhD to testify as to what Pedestrian could or should have been able to see and hear as Vehicle approached him.  PhD concluded that at approximately 138’ from Vehicle, Pedestrian would have been able to see the ground around him being illuminated by Vehicle’s headlights.  PhD also concluded that the sound generated by Vehicle as it moved on the road would have been audible to Pedestrian “several seconds prior to this vehicle reaching the [point of impact].”

6. Had [Pedestrian] been attentive to his surrounding environment, the approaching [Vehicle] would have been audible at a sufficient distance from the POI for him to move out of the way.

10. If [Pedestrian] had been using headphones to listen to an alternate sound source, or even had them in his ears, it would have reduced his ability to attend to the sounds in his external environment, such as the sound of [Vehicle] approaching.

What Pedestrian was able to see and hear in the moments before his death was critical evidence in this case.  If his attention was diverted to his iPhone, his ability to see and listen to the environment surrounding him would be diminished.  The light from the iPhone’s screen could have diminished his ability to see in the dark.  If listening to something through the iPhone, whether using the phone’s speakers or the ear buds found at the scene, his ability to hear other sounds was diminished.  The only way to evaluate if either scenario occurred was to forensically examine the iPhone that Father failed to preserve.

Accident Recon was critical of PhD’s analysis.  At their core, the criticisms about what Pedestrian might have been able to see and hear, were based upon what Accident Recon perceived as a lack of data.  However, the critical data that would have been most relevant to evaluating both what Pedestrian was doing and its affects upon what he could see and hear was lost when Father decided not to preserve the iPhone.  So I asked that, as a consequence of Father losing that data, Accident Recon be barred from testifying in any regard concerning PhD’s analysis.

Then the guns fell silent.

What happened?  A motion was filed but the case was mediated and settled before the motion could be heard.  During the course of that mediation, the mediator privately asked me about this issue.  “Don’t you want to know the truth about what happened?” I was asked.  I said no, I don’t care what actually happened or what the truth really was.  That response may surprise some, but it shouldn’t.  All that really matters is what good faith arguments the facts will support.  Here, the facts supported a good faith argument that someone on Pedestrian’s side of the aisle screwed up.  Whether it was Pedestrian or Opposing Counsel did not matter to me because the only out that I could see for them was to blame each other.  To continue the hunting analogy, that meant pointing their guns at each other.  It is quite satisfying to watch your adversaries take themselves out.

[1] Kenny Rogers, The Gambler (1978) (“you got to know when to hold ‘em, know when to fold ‘em, know when to walk away, and know when to run.”).
[2] At that moment, the game started.
[3] United States v. Kitsap Physicians Service, 314 F.3d 995, 1001 (9th Cir. 2002).
[4] In re Napster, 462 F.Supp.2d 1060, 1078 (N.D. Cal. 2006).
[5] Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 628 (C.D.Cal.2013) (citing Centrifugal Force, Inc. v. Softnet Communication, Inc., 783 F.Supp.2d 736, 740 (S.D.NY.2011)).
[6] Fernandez v. Centric, 3:12-cv-00401, 2014 U.S. Dist. LEXIS 67888 (D. Nev. 2014).
[7] “You’ll shoot your eye out.”
[8] The hunter’s choice of weapon depends on the target.  It should be sufficient to kill but not so powerful as to destroy the target because the goal is to have edible meat remaining.  This is not a factor in litigation because destroying opponent’s case is typically the goal.
[9] Riley v. California, 134 S. Ct. 2473, 2480 (2014).
[10] Id. at 2484.
[11] Id. at 2485.
[12] Id. at 2489.
[13] Id.
[14] Id. at 2490.
[15] Id. at 2489.
[16] Bass-Davis v. Davis, 122 Nev. 442, 449-50, 134 P.3d 103, 108 (2006).
[17] Id. at 450, 134 P.3d at 108.
[18] Id.
[19] Banks v. Sunrise Hosp., 120 Nev. 822, 849, 102 P.3d 52, 70 (2004) (Maupin, J., concurring in part and dissenting in part).
[20] Bass-Davis, 122 Nev. at 450, 134 P.3d at 108.
[21] Scalera v. Electrograph Sys., 262 F.R.D. 162, 176 (E.D.N.Y. 2009).
[22] House of Pain, Jump Around (1992).
[23] Dzung Chu v. Oracle Corp., 627 F.3d 376, 386-87 (9th Cir. 2010).
[24] GNLV Corp. v. Serv. Control Corp., 111 Nev. 866, 870, 900 P.2d 323, 325 (1995) (quoting Nevada Power v. Fluor Illinois, 108 Nev. 638, 645, 837 P.2d 1354, 1359 (1992)).
[25] 106 Nev. 88, 92, 787 P.2d 777, 779 (1990).
[26] See Huckabay Props. v. NC Auto Parts, 130 Nev. Adv. Op. 23, 322 P.3d 429 (2014).
[27] See Wynn Resorts, Ltd. v. Dist. Ct., 133 Nev. Adv. Op. 52, 399 P.3d 334, 346 (2017).
[28] NRS 47.250(3).
[29] 122 Nev. at 448, 134 P.3d at 106.
[30] Id., 134 P.3d at 107.
[31] Id. at 445, 134 P.3d at 105.
[32] Id. at 448, 134 P.3d at 107.
[33] Id.
[34] Id. at 449, 134 P.3d at 107.
[35] Remember what I said about ricochets?