Peterson v. Union Pacific Railroad Co., case No. 06-3084 (C.D. Ill. May 1, 2008)

Here we have a lesson in what not to do in discovery: don’t wait until after the close of discovery to seek sanctions, and be sure of your facts before making the motion. Magistrate Judge Byron G. Cudmore was not pleased with plaintiffs’ attention to detail and, as a result, denied their requests for additional discovery and ordered plaintiffs to explain why they themselves should not be sanctioned, although it will be interesting to see whether it is the estate of the two deceased women, the administrator of the estate, or counsel who bears the brunt of any sanctions the court may impose.

The case concerned two women who were apparently killed at a railroad crossing. Plaintiffs complained of three problems with defendant’s discovery. First, plaintiffs alleged that defendant was hiding information from its Cellular Remote Terminal Unit (“CRTU”). The court had previously ruled that relevant data from the CRTU included data that was periodically or regularly transmitted from the CRTU to an external computer for a period of two years prior to the date of the accident, as well as documents covering the installation of the device. Plaintiffs complained that the CRTU was not programmed to transmit the kind of information they were seeking, and that the information they did receive was full of acronyms, abbreviations and symbols they don’t understand.

The first problem with plaintiff’s motion was that they waited four months to make this request, after discovery had closed. The second problem related to their reliance on an Illinois Commerce Commission Order governing remote monitoring devices. Defendant had produced uncontroverted evidence that the CRTU was monitoring everything it was required to monitor. Thus, plaintiff could not show that the CRTU should have been programmed differently or that the programming of the device is material to the case.

The second problem that plaintiffs complained of was that they had not been provided with all the data that had been downloaded from the CRTU. Plaintiffs alleged that not all the data had been provided to the Illinois Commerce Commission. The court found that it had. Plaintiffs also alleged that defendant tampered with the data, based upon the existence of blank lines on the data printout. The court rejected this argument for lack of evidence. Plaintiffs conceded that when they pieced together the two copies of printed data from the download, they had received all of it. Plaintiffs relied on the fact that the “Properties” tab on the disk indicates that the file was create don 8:04 PM on July 22, 2004, while the file indicates that it contains data that was generated at 9:56 that day. The court found that the face of the data printout indicates that it was printed at 10:04 that day, and that defendant had produced evidence that the property tab actually indicates that the file was create dat 9:04, and that the two times are based upon internal clocks of two different devices. Thus, the court rejected plaintiffs’ claim that the data had been altered and their request for additional discovery on this issue.

Finally, plaintiffs complained that data on the recorder board that was removed from the crossing on the night of the accident has been concealed, altered and corrupted. They based this allegation on the fact that the board contains forty-nine additional lines of data recorded after the date of the accident. The defendant, however, established that the recorder board has a limited memory capability, and, as new data is recorded, old data is removed. Defendant had previously explained to plaintiffs that in order to respond to Interrogatories from plaintiffs about this new data, the board had been taken to an active crossing and plugged in, so that the data could be extracted. When it was plugged in, it began to act as designed, and recorded events that occurred while it was plugged in. The court found that any additional discovery about this event was immaterial, and denied plaintiffs’ request.

The court went on to note that plaintiffs had failed to establish any basis for discovery sanctions. Defendant had requested sanctions of its own for having to respond to this motion. The court said the question was whether the plaintiffs’ motion was substantially justified. If it was not, sanctions should be imposed. He gave the plaintiffs approximately ten days to respond with justifications for bringing the motion.

Discovery of electronic data can be a complicated undertaking. This case points out both that difficulty and the care that must be taken in making such a motion. Get your facts straight, or you may be sanctioned for burdening the court and the opposing party with an unnecessary motion.

Read the opinion