Failure to Attend Depositions

Failure to Attend Depositions Partly Limits Sanctions: eDiscovery Case Law

Even during ILTACON, eDiscovery case law marches on! In the case In re Gold King Mine Release in San Juan Cnty., No. 1:18-md-02824-WJ (D.N.M. June 21, 2022), New Mexico District Judge William P. Johnson granted in part Plaintiff State of Utah’s (Utah) Motion for Sanctions due to Defendant Harrison Western Construction Corporation’s (Harrison) Spoliation of Evidence, granting Utah’s request for an order permitting Utah to introduce evidence of the Harrison’s spoliation at trial and reasonable attorneys’ fees and costs associated with investigating Harrison’s spoliation and preparing a motion for sanctions, but denying Utah’s request for an adverse inference instruction, in part due to Utah’s failure to attend depositions of Harrison’s Rule 30(b)(6) witness and Harrison’s employee with the most information on the Gold King Mine project.

Case Discussion

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 (eDiscovery Today covered a previous ruling on the case here). Utah sought documents related to the work Harrison performed or planned to perform at the Gold King Mine in 2014 and 2015, but the only pre-blowout emails Harrison produced were those that pertained to its being awarded the subcontract work at the mine and related funding issues and the only post-blowout documents were emails and an employee’s journal, and no other types of documents, i.e., memoranda, reports, and non-email correspondences.

Harrison’s stated its third-party IT consultant suspected that a “catastrophic event” occurred at some time prior to the migration of information and data from the prior server to the new server resulting in information and data that was corrupted and inaccessible. After two searches of its current server and a search of the server it replaced, Harrison confirmed that it did not have any other emails to produce in response to Utah’s first set of requests for production of documents.

On October 5, 2020, Harrison’s Rule 30(b)(6) representative was deposed. No attorney for the State of Utah appeared at or attended the deposition. On October 30, 2020, Robert Heeter – the Harrison employee with the most information on the Gold King Mine project – was deposed. Once again, no attorney for the State of Utah appeared at or attended the deposition.

Judge’s Ruling

Judge Johnson stated: “There is no dispute that Harrison knew, or should have known, that litigation was imminent.” He added: “Harrison failed to take reasonable steps to preserve its ESI. Other than implementing a litigation hold, Harrison does not identify any other steps it took to preserve its ESI such as taking affirmative steps to monitor compliance, talking to key employees in an effort to understand how evidence will be stored, and continually ensuring that Harrison was preserving relevant evidence, for example by having a back-up storage system in place to ensure that the relevant ESI would be preserved.”

Continuing, Judge Johnson stated: “The Court further finds that Utah has been prejudiced by the spoliation of Harrison’s ESI… The spoliated ESI is relevant to issues such as whether: (i) Harrison declined or had other reasons for not being present at the on-site meeting scheduled for August 4, 2015; (ii) Harrison knew ER was planning to conduct excavation activities on August 4-5, 2015; and (iii) miscommunications created confusion regarding how to safely and properly accomplish work at the Gold King Mine.”

But Judge Johnson also stated: “The Court is, however, not persuaded by Utah’s assertion that ‘none of these documents can be replaced.’…Utah has not shown that some of the documents at issue cannot be obtained from EPA and/or ER”.

As a result, Judge Johnson ruled: “The Court grants Utah’s request for an order permitting Utah to introduce evidence of the Harrison’s spoliation at trial”. But he also ruled: “The Court denies the Utah’s request for an order precluding Harrison from proffering other evidence that it was not invited to attend, or informed of the plans and action to take place on the day of the Gold King Mine Blowout. Precluding Harrison from putting on such evidence while allowing Utah to introduce evidence of Harrison’s spoliation at trial would undermine the Court’s interest in promoting accurate fact finding by the jury… The Court denies Utah’s request for an adverse inference instruction or presumption that the spoliated evidence would have been unfavorable to Harrison… Harrison’s spoliation appears to be the result of one ‘catastrophic’ server event. While Utah contends that Harrison’s explanation is ‘implausible,’ Utah did not appear at or attend the depositions of Harrison’s Rule 30(b)(6) witness and Harrison’s employee with the most information on the Gold King Mine project, witnesses who may have been able to address Utah’s concerns about the implausibility of Harrison’s explanation regarding the loss of the ESI.”

However, Judge Johnson did grant Utah’s request for an order awarding Utah all reasonable attorneys’ fees and costs associated with investigating Harrison’s spoliation and preparing a motion for sanctions.

So, what do you think? Would Utah have gotten more significant sanctions if they attended the depositions? 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.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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