An Archway Cookies truck rear-ended a slow-moving and malfunctioning Greyhound bus as its driver tried to make the next off-ramp.  Greyhound sued Archway for bus damages.  The district court, after a bench trial, assessed 85 percent of fault to Archway and 15 percent to Greyhound.  Archway complained on appeal that the district court should have imposed sanctions on Greyhound for failing to preserve an in-bus electronic control module (ECM) that contained data about the bus’s condition before the collision.  The Eighth Circuit upheld the district court’s refusal of "spoliation" sanctions, noting that Greyhound didn’t erase the ECM data — the engine manufacturer (inexplicably) did after Greyhound sent the ECM to it before filing the lawsuit.  "The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth, not the prospect of litigation."  Greyhound Lines, Inc. v. Wade, No. 06-1875 (8th Cir. Apr. 24, 2007).

Now, Blawgletter has devoured a sweet and chewie Archway cookie or two and confesses to liking them very much.  But Archway’s spoliation argument strikes us as far less tasty.  What did Archway expect the district court to do anyway — instruct itself to think ill of Greyhound for allowing one of its buses to get in the way of a cookie delivery vehicle?  C’m’on.  Have a cookie, guys.

Barry Barnett

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