THE ISSUE: Were spoliation sanctions warranted against a company that was on notice of the possibility of litigation regarding its automobile maintenance diagnostic device when it produced some but not all the source code for that device?
DECISION: Yes (Middlesex Superior Court)
LAWYERS: Louis J. Muggeo of Louis J. Muggeo & Associates, Salem; David A. White of Davis & White, North Andover (third-party plaintiffs)
Jay V. Lee and Andrew D. McNaught, of Gallagher & Cavanaugh, Lowell (third-party defense)
The day after the accident, a State Police lieutenant informed an Innova customer service representative that the scan tool had been plugged into the Jeep’s electric port at the time of the accident. The lieutenant asked the representative if it was possible the tool could tamper with the Jeep’s acceleration and was told that the tool did not have the capability to put a car into drive or accelerate the engine.
Nonetheless, the lieutenant purchased a scan tool the following day, and within days, Innova had plans to embark on its own investigation, according to company records.
After Lynnway Auto brought its third-party action, Innova produced in discovery some but not all the source code for the 3160d scan tool. Notably missing was the communication source code directly relating to Chrysler vehicles, such as the Jeep.
Lynnway Auto’s electrical engineer expert testified that the source code was essential for a proper and thorough evaluation of the way the scan tool interfaced with the Jeep’s computer systems and electrical signals.
Specifically, the expert maintained that the missing source code was preventing him from properly conducting a software verification activity known as a “static code analysis.”
Innova had produced the binary code for the scan tool, but since it was not a human-readable format, it could not be used to perform the static code analysis, the expert claimed.
In granting the motion for sanctions, Barrett ruled that Lynnway Auto could present evidence of the alleged spoliation at trial and would be entitled to an instruction that the jury could — but was not required — to infer from the deletion of the communication source code that its contents were unfavorable to Innova.
Reasonable inferences
Barrett concluded that Innova was on notice of possible litigation no later than May 4, 2017, when the police lieutenant had the conversation with the company’s customer service representative.
The manufacturer contended that the conversation, at most, placed it on notice of its duty to preserve the device but not the source code. But Barrett disagreed, citing the testimony of the plaintiffs’ expert regarding the necessity of having the entire source code to conduct the “static code analysis” properly.
The manufacturer also argued that it was not at fault for the spoliation because there was no evidence that it intentionally discarded the missing portion of source code, and the precise date when the source code had been discarded was unknown.
But Barrett deemed the plaintiffs to have sufficiently established that the evidence had been negligently lost or destroyed by citing the company’s “informal custom and practice” of retaining the source code for its scan tool models for approximately two years after a particular model was last sold, coupled with an invoice showing that six of the scan tools had been sold to Wal-Mart about a year before the accident.
The plaintiffs’ expert also averred that it is standard practice in the industry for the purpose of troubleshooting to retain all portions of a source code, rather than selectively discard portions.
Here, the manufacturer had retained some but not all the source code for its scan tool and not explained why or how that happened, Barrett noted.
Source: https://masslawyersweekly.com/2024/05/23/evidence-spoliation-source-code/
