Extract from Doug Austin’s article “Spoliation of Basecamp Documents Leads to Adverse Inference Sanctions”
In Ace Am. Ins. Co. v. First Call Envtl., LLC, No. 5:21-cv-02331-JMG (E.D.N.Y. Jan. 9, 2023), Pennsylvania District Judge John M. Gallagher granted the plaintiff’s motion for adverse inference sanctions due to the defendant’s spoliation of Basecamp documents that detailed safety information.
In this case involving a fire that the plaintiffs alleged broke out because the defendant improperly remediated environmentally hazardous substances at the plaintiff’s property, one of the plaintiffs’ production requests requested “any notes, summaries, or any other documentation … for all Tailgate Safety meetings conducted by the Defendant in connection with any of [Defendant’s] work” at plaintiff’s facility in June of 2019. “Daily Tailgate Safety Meeting” documents (“Tailgate Documents”) were the defendant’s form for its employees to fill out, review, and upload to Defendant’s web-based application, Basecamp, before each job to identify a particular job’s site hazards, as well as “reference meeting notes, employee concerns, and [ ] descriptions of activities that were to take place on site.”
In response to Plaintiffs’ request for the Tailgate Documents concerning the job at issue, the defendant responded it had “[n]o responsive documents.” But, in later depositions, Defendant’s employee Justin Tresch testified Tailgate Documents “would … have been used during the work at Bulk Chemical” and he testified he “personally filled out [two] Daily Tailgate Safety Meeting form[s] for the Bulk Chemical job” as well as personally seeing “Daily Tailgate Safety Meeting documents … uploaded to Basecamp for the Bulk Chemical Job.”