In the case In re Gold King Mine Release in San Juan Cty., Col., on Aug. 5, 2015, No. 1:18-md-02824-WJ (D.N.M. Aug. 6, 2021), New Mexico District Judge William P. Johnson granted in part the plaintiffs’ Motion for Sanctions due to the Federal Parties’ Spoliation of Evidence, granting the request for an order permitting the plaintiffs to introduce evidence of the Federal Parties’ spoliation of mobile device data at trial, denying the request for an order precluding the Federal Parties from putting on evidence regarding unintentional opening of the mine that triggered a natural disaster and deferring ruling on requests for an adverse inference instruction that the spoliated evidence would have been unfavorable to the Federal Parties.

Case Background

This case involved an inadvertent spill of 3 million gallons of wastewater by an EPA led contractor crew in the inactive Gold King Mine that polluted rivers in Colorado, New Mexico, in Utah, including on the Navajo Nation lands.  The movants asserted that the Federal Parties spoliated mobile device data of EPA’s On Scene Coordinators (“OSCs”) Way and Griswold, as follows:

• Griswold: Griswold’s first iPhone, which was used before, during and after the Blowout until the EPA collected it in May 2016 was backed up by the EPA, but because EPA “forgot” the password, the backup of Griswold’s first iPhone was “inaccessible.”  The data on Griswold’s iPad, which he used “extensively for work related to the Gold King Mine “had been ‘cleared’ because the iPad was ‘reset to factory settings’ ” before he turned it in to EPA. EPA backed up the OSCs’ EPA-issued laptops to OneDrive but did not collect ESI from Mr. Griswold’s OneDrive account until almost five years after the Blowout, resulting in the loss of “around 800 photographs and 120 documents related to Mr. Griswold’s work at the Gold King Mine”.
• Way: “[N]one of Mr. Way’s text messages were preserved until EPA collected his iPhone in May 2016.” There were no text messages available on Mr. Way’s iPhone from before October 20, 2015, even though produced documents show that “Mr. Way exchanged at least 245 Gold King Mine-related text messages” between July 7 and October 20, 2015.  Way turned in his EPA-issued iPad in when he retired in May 2016, but EPA could not access the ESI on Way’s iPad because Way did not remember his password.

Measures to preserve and recover evidence included:

1. On August 11, 2015, six days after the Blowout, EPA issued a litigation hold related to the Gold King Mine release. 
2. In May 2016 EPA held “in-person text preservation and cell phone exchange meeting” with Griswold and Way with an EPA attorney and Griswold and Way “signed a form certifying compliance with the text preservation instructions.” 
3. In July 2020, the “Federal Parties consulted with vendors who specialize in password cracking … authorized vendors to use ‘brute force’ application to decrypt Mr. Griswold’s iPhone and unlock Mr. Way’s iPad. The applications ran for 13 weeks … but they were not successful.”
4. The EPA “followed up on the preservation of texts with custodians in April 2016” and “sought to preserve texts through this process on approximately 500 cell phones.” The Federal Parties state that “today over 1,000 custodians are subject to the litigation hold.”

In addition, the Sovereign Plaintiffs argued that “EPA’s decision to leave it to Messrs. Way and Griswold to self-select and forward text messages before collecting their devices eight months after the Blowout was unreasonable, especially given that their conduct was the subject of multiple federal investigations”, also noting that “Griswold was being criminally investigated for potentially false statements provided to EPA OIG investigators.”

Judge’s Ruling

In evaluating the request for sanctions for spoliation of mobile device data, Judge Johnson stated: “The Court finds that spoliation sanctions are proper.”  In finding that the plaintiffs were prejudiced by the loss of ESI, he also stated: “EPA failed to take reasonable steps to preserve Mr. Griswold and Mr. Ways’ ESI. Although EPA issued a litigation hold on August 11, 2015, six days after the Blowout, EPA did not send additional instruction directing custodians to preserve “all messages related to Gold King” with contacts for technical assistance until November 23, 2015, more than three months after the Blowout. Apparently EPA did not take affirmative steps to preserve Mr. Griswold and Mr. Way’s ESI until April 2016, eight months after the Blowout, when EPA followed up on the preservation of texts with custodians, and May 2016 when EPA conducted an ‘in-person text preservation and cell phone exchange meeting’ with Mr. Griswold and Mr. Way with an EPA attorney and technical staff available to assist. The Court recognizes the resources required and that some delay was inevitable when EPA ‘sought to preserve texts through this process on approximately 500 cell phones’ and now with over 1,000 custodians subject to the litigation hold. However, Mr. Griswold and Mr. Way, who as EPA’s On Scene Coordinators directed and were responsible for the activities at Gold King Mine, were the most likely employees to have relevant ESI regarding the Blowout compared the other EPA employees who were more remotely involved with the activities at the Gold King Mine. The Court finds that it was unreasonable for there to be such delays in preserving the ESI on Mr. Griswold and Mr. Way’s electronic devices.”

As a result, Judge Johnson granted the request for an order permitting the plaintiffs to introduce evidence of the Federal Parties’ spoliation of mobile device data at trial, but denied the request precluding the Federal Parties from putting on evidence, stating: “Precluding the Federal Parties from putting on such evidence while allowing the Sovereign Plaintiffs to introduce evidence of the Federal Parties’ spoliation at trial would undermine the Court’s interest in promoting accurate fact finding by the jury.” As for the request for an adverse inference sanction, Judge Johnson gave an opportunity for the parties to file supplemental briefing on the topic, while noting several issues that “remain unclear” regarding the spoliation.

So, what do you think?  Do you think the Court had enough info to decide an adverse inference instruction?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.  Check out Kelly Twigger’s coverage of this case here!

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