An emergency court hearing was held on July 14, 2009 in the crash that killed Disney monorail operator Austin Wuennenberg. Although no lawsuit has been filed by the Wuennenberg family, court documents reveal that lawyers for Christine Wuennenberg, mother of Austin Wuennenberg, petitioned the court for a Pure Bill of Discovery, which would allow access to evidence related to the crash. Ms. Wuennenberg’s attorney also requested, in the alternative, that the court grant an Order Preserving Evidence requiring Disney to preserve evidence, as there was reason to believe, based upon public reports, that evidence might be altered or destroyed.
In an order handed down on July 24, 2009, Circuit Judge Cynthia Z. Mackinnon denied the Pure Bill of Discovery requested by Ms. Wuennenberg’s attorneys. In a surprise move, the court also denied the Order Preserving Evidence, which now means, in the words of Ms. Wuennenberg’s petition, that she “will have no adequate remedy at law . . . and . . . will suffer irreparable injury.” The denial by the court is puzzling, as Florida law prohibits Disney from destroying evidence that could be material to any civil litigation. Evidence relating to the crash of the monorail would be material to civil litigation relating to Austin Wuennenberg’s death, and to deny an order requiring Disney to preserve such evidence appears to be inconsistent with Florida law. With evidence such as video recordings, photographs, and audio communications now often stored electronically, it is not unreasonable that a large company such as Disney might eventually re-record over such data. Ordering the preservation of such evidence seems to be the only proper decision in this matter. To its defense, perhaps the Court refused to grant to the order to preserve evidence because it felt that Disney would be subject to sanctions later if, indeed, it destroyed evidence.