United States District Court, S.D. Indiana, Evansville Division
ORDER DENYING DEFENDANT'S MOTION TO PRESERVE
EVANS BARKER, JUDGE.
before the Court is Defendant Great American Assurance
Company's (“Great American”) Motion to
Preserve Evidence, filed on February 22, 2019 [Dkt. 15].
Specifically, Great American requests an order maintaining
the status quo and requiring the parties to preserve the life
of the horse that is the subject matter of this case. For the
reasons detailed in this entry, we DENY Great American's
December 20, 2018, Plaintiff Julie Greenbank filed her
Amended Complaint alleging that Great American, insurer for
Ms. Greenbank's horse, Thomas, breached its contract with
Ms. Greenbank and was liable for bad faith, theft,
conversion, criminal mischief, fraud, and negligence [See
generally Dkt. 10]. Ms. Greenbank's legal claims
against Great American are grounded in allegations that Great
American improperly took possession and control of Thomas,
rather than authorizing a necessary and humane euthanization,
so that Great American could avoid having to pay out benefits
for a mortality loss under the parties' insurance policy
[Id.]. Ms. Greenbank argues that Great American has
subjected Thomas to inhumane, controversial, and excessive
medical procedures to keep him alive and avoid paying out on
the policy [Id.].
American asserts that it took possession of Thomas pursuant
to a policy provision that permitted it to assume control
over Thomas's medical treatment at its expense [See
generally Dkt. 11; Dkt 15-1, at 3-4]. Great American
subsequently terminated the insurance policy for a multitude
of reasons, most notably relevant here that Ms. Greenbank had
neglected Thomas, causing his deteriorated state and giving
rise to the need for Great American's intervention
[Id.]. Great American claims that since it took
possession and control of Thomas's care, Thomas has made
a significant recovery and is now thriving [Id.].
Despite terminating its policy with Ms. Greenbank, Great
American has maintained possession and control of Thomas [Am.
Compl. ¶ 76; Dkt. 18, at 2; Dkt. 22, at 3-4].
American now requests an order maintaining the status quo
whereby the parties must continue to preserve the life and
well-being of Thomas [Dkt. 15]. Specifically, Great American
requests that we order the preservation of Thomas by allowing
continued treatment at Great American's chosen medical
facility, where Thomas has been treated since being taken
into Great American's possession, and at the appropriate
time, allowing Thomas to be treated at Great American's
chosen rehabilitation facility [Id. at 3]. Great
American's request includes that the care will be at its
courts have broad discretion in matters related to discovery.
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681
(7th Cir. 2002). “A motion to preserve evidence is an
injunctive remedy and should issue only upon an adequate
showing that equitable relief is warranted.”
Streeter v. SBC, No. 1:04-CV-814-LJM-WTL, 2005 WL
8169093, at *2 (S.D. Ind. Mar. 10, 2005). Although the
Seventh Circuit has not described the appropriate standard
for deciding a motion for preservation, district courts in
our Circuit have previously used the following standard to
evaluate this request:
The court will look at three factors in determining whether a
preservation order is warranted . . .: 1) whether [Defendant]
can demonstrate that [Plaintiff] will destroy necessary
documentation without a preservation order; 2) whether
[Defendant] will suffer irreparable harm if a preservation
order is not entered; and 3) the burden imposed upon the
parties by granting a preservation order.
Id. (quoting In re African-Am. Slave
Descendants' Litig., MDL No. 1491, Lead Case No.
02C7764, 2003 WL 24085346, at *2 (July 15, 2003)); see
also McDaniel v. Loyola Univ. Med. Ctr., No.
13-CV-06500, 2014 WL 1775685, at *2 (N.D. Ill. May 5, 2014).
at the outset that the request before us is unlike most other
motions to preserve evidence. Namely, the evidence at issue
here is not presently at risk of destruction in the hands of
its owner; rather, the defendant, who has not asserted any
lawful rights to possess the disputed evidence, in fact
currently controls and possesses the evidence it seeks to
preserve and to maintain in its control and possession. The
disputed evidence is not in the form of documentation or some
other inanimate object, rather a living horse whose continued
physical well-being is paramount. Our analysis of whether to
order preservation at this time proceeds with that in mind.
first factor we examine in determining if a preservation
order is appropriate is whether Great American can and has
demonstrated that Ms. Greenbank will fail to preserve Thomas
without an order. Great American is concerned that Ms.
Greenbank will euthanize Thomas absent a court order
prohibiting that action, given Ms. Greenbank's initial
intention to do so at the outset of the parties' dispute
[Dkt. 15-1, at 6-8]. Alternatively, Great American is
concerned that Ms. Greenbank will ...