STATE OF MICHIGAN Michigan Public Service Commission 7109 W. Saginaw Hwy. -- P.O. Box Lansing, Michigan 48909

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1 STATE OF MICHIGAN Michigan Public Service Commission 7109 W. Saginaw Hwy. -- P.O. Box Lansing, Michigan In the matter of the complaint of Case Number: U CAROL BROOKS against DTE ENERGY COMPANY and DTE ELECTRIC COMPANY COMPLAINANT S MOTION FOR SPOLIATION SANCTIONS AGAINST RESPONDENTS Carol Brooks ( Brooks ), by and through her attorneys, Demorest Law Firm, PLLC, states as follows for her Motion for Spoliation Sanctions against DTE Energy Company and DTE Electric Company (collectively, DTE ): INTRODUCTION Complainant files this Motion for Spoliation Sanctions following DTE s disclosure on September 6, 2016 that it removed the electric meter from Monica, Detroit, Michigan (the Monica Property ) at issue in this case ( Meter ) on February 24, 2016 nearly two months after Complainant filed her formal Complaint against DTE with the Michigan Public Service Commission related to Meter , DTE s accusations that Brooks stole electricity, and DTE s failure to follow the MPSC rules prior to disconnecting Meter Meter is material evidence in this case and extremely relevant, as it is the very thing underlying this case and the basis for DTE s claims that Ms. Brooks engaged in unauthorized use of electric service and that Ms. Brooks owes DTE $6, FACTUAL STATEMENT On December 30, 2015, Complainant Carol Brooks filed a formal complaint against 1

2 DTE. At that time, Brooks had been without electricity for nearly a year. 1 From December 5, 2014 to present, DTE has accused Brooks of theft of electricity and engaging in unauthorized use of electricity. For over a year, DTE refused to restore Brooks electric service unless she paid DTE around $7,000 2 in satisfaction of a theft amount that DTE alleged she owed. From December 5, 2014 to present, Brooks and her counsel have implored DTE to produce documents related to the purported theft and the amount that DTE alleges Brooks owes. Prior to filing a formal complaint against DTE on December 30, 2015, DTE refused to produce any documents regarding its allegations of theft or the amount that it alleges Brooks owes, despite the fact that those documents have been in DTE s possession all along. Upon finally receiving DTE s theft investigation report on February 19, 2016, it is obvious why DTE refused to produce that document sooner it clearly indicates that there was no theft at the Monica Property in direct contradiction to DTE s prior statements to Brooks. Then, just five days after disclosing its theft investigation findings, and without any notification to Brooks or her counsel, DTE removed Meter from the Monica Property. After removing Meter on February 24, 2016, DTE submitted direct testimony attempting to refute its own findings that there had been no theft at the Monica Property. In addition, DTE submitted several documents regarding the purported reading 1 DTE disconnected Brooks electric service on January 6, Her electric service was not restored by DTE until February 24, The amount DTE has claimed Brooks owes has been a moving target since December 5,

3 on Meter as of January 6, 2015, in an effort to support its argument that Brooks owes DTE $6, In addition, DTE continues to claim that Brooks may have stolen electricity and/or engaged in unauthorized use of utilities. 3 DTE s intentional removal and/or destruction of Meter has left Brooks at a severe disadvantage in this case. Brooks has no way to verify the usage DTE claims on Meter , nor does she have any opportunity to conduct her own investigation of Meter and discover possible errors made by DTE (as opposed to some type of wrongdoing by Brooks) in disconnecting Meter which could have caused it to register use after allegedly being disconnected. Complainant requests that the MPSC find that DTE s removal of Meter while litigation was pending raises a presumption against DTE that the Meter , if preserved, would have provided evidence that is adverse to DTE in this case. ARGUMENT "Spoliation [of the evidence] refers to destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Silvestri v Gen Motors Corp, 271 F3d 583, 590 (4th Cir 2011). When a party destroys or loses material evidence, whether intentionally or unintentionally, that it knows or should know is relevant to the case, and the other party 3 Dave Taylor, an electrician that had been to the Property in December 2014, refuted many of the claims made by DTE in its direct testimony in his rebuttal testimony. It was during his visit to the Monica Property on August 1, 2016, that Brooks first learned that DTE had removed Meter DTE s removal of Meter severely inhibited Taylor s investigation, as he could not look at Meter to determine what, if any, unbilled usage accrued on the meter and what could have caused the purported unbilled usage. 3

4 is unfairly prejudiced because it is unable to challenge or respond to the evidence, a trial court has the inherent authority to sanction the culpable party to preserve the fairness and integrity of the judicial system. Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). There is also a general rule that if a party intentionally destroys evidence that is relevant to a case, a presumption arises that the evidence would have been adverse to that party's case. Ward v Consolidated Rail Corp, 472 Mich 77, 84; 693 NW2d 366 (2005). The Michigan Supreme Court has stated as follows regarding the general rule to remedy a party s spoliation of evidence: It is a general rule that the intentional spoliation or destruction of evidence raises the presumption against the spoliator where the evidence was relevant to the case or where it was his duty to preserve it, since his conduct may properly be attributed to his supposed knowledge that the truth would operate against him. Trupiano v. Cully, 349 Mich 568, 570 (1957) (citing 20 Am Jur, Evidence, 185, p If material evidence has been lost or destroyed by one party, the trial court must carefully fashion a sanction that denies that party the fruits of its misconduct, but that does not interfere with the party's right to produce other relevant evidence. Bloemendaal v Town & Country Sports Ctr Inc, 255 Mich App 207, 212; 659 NW2d 684 (2002). [P]ossible sanctions include the exclusion of evidence that unfairly prejudices the other party or an instruction that the jury may draw an inference adverse to the culpable party from the absence of the evidence. Id. In this case, DTE clearly was under a duty on February 24, 2016 to preserve Meter , as it is relevant to this case which was well underway at the time of removal. In order to remedy DTE s spoliation of evidence, the MPSC should prohibit DTE from 4

5 offering testimony or evidence alleging or insinuating that Ms. Brooks tampered with Meter Brooks further requests that the MPSC find that DTE s removal and/or destruction of the Meter raises an inference that Meter contained information that was adverse to DTE, including but not limited to, (1) that any unbilled usage that occurred on Meter was the result of an error by DTE; and (2) that DTE s meter readings of Meter were inaccurate. CONCLUSION WHEREFORE, Brooks requests that the MPSC find that DTE s removal of the Meter while litigation was pending constitutes spoliation. Brooks further requests that the MPSC enter a ruling to remedy the spoliation including: (1) finding that DTE s removal and/or destruction of Meter raises an inference that the meter contained evidence that that was adverse to DTE; (2) finding that DTE s removal and/or destruction of Meter raises an inference that any unbilled usage that occurred after August 31, 2009 was the result of an error by DTE; (3) finding that DTE s removal and/or destruction of Meter raises an inference that DTE s meter readings were inaccurate; (4) prohibiting DTE from testifying or arguing that Brooks in any way tampered with the Meter ; and (5) awarding Brooks her attorney fees and costs in having to bring this Motion. 5

6 Respectfully Submitted, Dated: September 15, 2016 /s/ Lisa M. Okasinski Mark S. Demorest (P35912) Lisa M. Okasinski (P78470) Attorneys for Claimant 322 W. Lincoln Royal Oak, MI (248) Hawkins, Myra/Pleadings/ Motion for Spoliation Sanctions.docx 6