eDiscovery Case Week continues with a ruling that is, to say the least, unique! In Morrow v. Temple, et al., No. CV-19-0202-TUC-JAS (BGM) (D. Ariz. May 11, 2022), Arizona Magistrate Judge Bruce G. Macdonald recommended that the District Judge enter an order granting the plaintiff’s Motion for Sanctions for failure to preserve evidence and failure to provide a horse for inspection, stating that “an adverse inference jury instruction is appropriate.”

Case Discussion

In this contract dispute, the plaintiff purchased a horse named Big Rig from the defendants (who buy and sell roping horses in Arizona) in August 2018 for $19,550. The plaintiff alleged that the defendants shipped Big Rig to Texas, and when the horse arrived, the plaintiff noticed that he was exhibiting signs of lameness in his front legs. The plaintiff had Big Rig examined by a veterinarian, and Plaintiff ultimately concluded that Big Rig was not suitable for competition.

The plaintiff had also alleged that he negotiated a replacement agreement with defendant Steven Temple, where his ranch would take Big Rig back, issue the plaintiff a credit for the purchase price of Big Rig and allow the plaintiff to select a suitable replacement. Big Rig was eventually transported back from Texas to Arizona and defendant Steven Temple took possession of Big Rig but refused to provide a replacement. The defendants continued to refuse to provide the plaintiff with a selection of potential replacement horses and refused to refund his money, alleging that the horse returned from Texas lame and instead demanded that the plaintiff pay for Big Rig’s medical bills.

In November 2018, counsel for the plaintiff sent a pre-litigation letter to the defendants indicating his involvement in the case and noting defendants’ “duty to preserve evidence which you know or reasonably should know is relevant to this action.” Subsequently, the plaintiff filed this action and submitted several discovery requests between January 2020 and April 2021, to which the plaintiff reported defendants never responded.

On October 20, 2021, the plaintiff re-noticed Defendant Steven Temple’s deposition. A week later, the plaintiff requested to inspect Big Rig for a health evaluation. The defendants denied this request, resulting in the plaintiff’s motion for failure to preserve evidence and failure to provide the horse for inspection.

Judge’s Ruling

In reviewing the case, Judge Macdonald stated: “It is undisputed that Defendants relinquished custody and control of Big Rig on April 22, 2021…When asked if Big Rig was in good condition when he was returned to Defendants and is in good condition now, why there was the current lawsuit for a return of Plaintiff’s purchase payment, Defendant stated that Big Rig was returned ‘damaged’”, but he “admitted, however, that he did not keep any records of this treatment…After Defendant Steven Temple’s deposition, Plaintiff sought to inspect Big Rig to assess his condition and determine if he was currently ‘sound and healthy.’…It was subsequently disclosed that ‘Big Rig died between July 4, 2021 and July 6, 2021 in Arizona.’”

Continuing, Judge Macdonald stated: “Defendants’ contention that Plaintiff should have retaken possession of Big Rig is devoid of merit. Plaintiff returned Big Rig to Defendants with the expectation that he would receive a refund of the purchase price or a new horse. In Plaintiff’s view, he relinquished ownership upon return. There would be no reason for him to retake possession of a horse that he did not own. Similarly, Defendants’ contention that Plaintiff waited too long to request inspection is without merit. Defendants did not provide Plaintiff with any documentation regarding Big Rig’s ongoing health throughout the litigation process and it was not until Defendant Steven Temple’s deposition that Plaintiff learned Big Rig might have some lingering health issues.”

Concluding that sanctions were appropriate for the defendants for failure to preserve evidence and failure to provide a horse for inspection, Judge Macdonald stated: “It was Defendants’ responsibility to maintain custody and control of Big Rig during the pendency of the litigation, which they failed to do. As a result of this failure, Plaintiff was deprived of his ability to have Big Rig reassessed or, in light of his death, determine how or why he died. Big Rig’s health was relevant to the litigation. Although the balance of factors for default judgment weighs in favor of Plaintiff, the record is not clear that Defendants acted in bad faith. The Court finds, however, that Defendants willfully relinquished custody and control of Big Rig. As such, it finds that an adverse inference jury instruction is appropriate.”

So, what do you think? Are you surprised that Judge Macdonald recommended adverse inference sanctions for failure to preserve evidence and failure to provide a horse for inspection, given that he also determined it wasn’t clear the defendant acted in bad faith? Please share any comments you might have or if you’d like to know more about a particular topic.

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