Claims arising from a motor vehicle accident; Deletion of files from plaintiff’s computer; Spoliation of evidence; Brenner v Kolk; Gillett v Michigan Farm Bureau (Unpub); Expert witness; Credibility; Compliance with discovery orders; Whether sanctions short of dismissal were appropriate

The court held that the trial court’s determination that plaintiff did not intentionally destroy evidence, and it was unlikely any evidence was lost, was well-supported by the record. Further, the trial court considered its range of sanction options, and did not abuse its discretion in ruling that “neither dismissal nor a lesser sanction was appropriate other than a possible adverse jury” instruction. Thus, the court affirmed the order denying defendant-SMART’s motion to dismiss. The case arose out of a motor vehicle accident when a bus owned by defendant struck plaintiff’s vehicle while it was stopped in traffic. Defendant argued that the trial court abused its discretion in denying its “motion to dismiss because it ignored the volume and timing of the deletions” on plaintiff’s laptops, found her “computer forensic expert to be more credible than defendant’s computer forensic expert, and, most importantly, found the deletions to be unintentional.” Defendant relied heavily on Gillet. But Gillett had “numerous factual differences” and thus, was “only marginally persuasive authority.” Defendant asserted that “the trial court could not have properly found the deletion of files on plaintiff’s computer to be unintentional because plaintiff was a ‘sophisticated’ computer user.” However, the record supported “the trial court’s factual finding that plaintiff did not intentionally destroy evidence, which finding cannot be overturned absent clear error.” The trial court determined that it was “compelling that both experts agree the program at issue, CCleaner, was installed before” the case was filed, and that they “also agree the program was installed in such a manner as to be run automatically. Each time the computer was switched on, the program would automatically delete certain files and clean the hard drive.” As these facts supported the trial court’s decision, its finding that she did not knowingly destroy evidence was supported by the record and not clearly erroneous. Further, its ruling was strengthened by its finding that based on forensic analysis, it was “unlikely than any relevant evidence was lost, let alone lost intentionally. And finally, the trial court properly considered alternative sanctions, stating that” it would consider a request for an adverse inference instruction at trial if defendant requested one. Thus, there was no basis for finding an abuse of discretion.