Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
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`IN RE: GOLD KING MINE RELEASE IN SAN
`JUAN COUNTY, COLORADO, ON AUGUST 5,
`2015
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`This Document Relates to:
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`All Cases
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`
`)
`) C.A. No. 1:18-md-02824-WJ
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`SOVEREIGN PLAINTIFFS’ MOTION FOR SANCTIONS
`DUE TO THE FEDERAL PARTIES’ SPOLIATION OF EVIDENCE
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`5961174
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`Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 2 of 34
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ........................................................................................................................ 1 
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`BACKGROUND .......................................................................................................................... 3 
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`I.
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`II.
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`The OSCs’ Role in the Blowout ........................................................................... 3 
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`The Federal Parties’ Repeated and Wide-Reaching Spoliation of
`the OSCs’ ESI ....................................................................................................... 4 
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`A.
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`B.
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`C.
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`D.
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`Mr. Griswold’s iPhones ............................................................................ 4 
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`Mr. Way’s iPhone ..................................................................................... 6 
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`Mr. Way’s iPad ......................................................................................... 7 
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`Mr. Griswold’s iPad .................................................................................. 7 
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`III.
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`E.
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`Mr. Griswold’s OneDrive Account........................................................... 8 
`The Federal Parties Withhold Knowledge of the Spoliation for
`Years, Before Belatedly Disclosing It Only Two Months Before
`Fact Discovery Was Set to Close .......................................................................... 8 
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`LEGAL STANDARD ................................................................................................................. 10 
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`ARGUMENT .............................................................................................................................. 13 
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`I.
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`II.
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`III.
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`IV.
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`V.
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`Despite Having a Duty to Preserve the Spoliated Evidence, the
`Federal Parties Failed to Take Reasonable Steps to Preserve It, and
`It Cannot Be Restored or Replaced Through Additional Discovery .................. 13 
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`The Sovereign Plaintiffs Have Been Prejudiced by the Federal
`Parties’ Spoliation of Contemporaneous Communications and
`Documentation from the Two Most Important EPA Witnesses ......................... 17 
`The Totality of the Evidence Compels the Conclusion That the
`Federal Parties Spoliated the Documents and Communications in
`Bad Faith ............................................................................................................. 21 
`The Federal Parties’ Violated the Preservation Order ........................................ 23 
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`The Sovereign Plaintiffs Are Entitled to Sanctions ............................................ 25 
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`CONCLUSION ........................................................................................................................... 27 
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases 
`
`Adams v. Gateway,
`2006 WL 2563418 (D. Utah Mar. 22, 2006) ............................................................ 12, 23
`
`Ala. Aircraft Indus., Inc. v. Boeing Co.,
`319 F.R.D. 730 (N.D. Ala. 2017).................................................................................... 12
`
`Beck v. Test Masters Educ. Servs., Inc.,
`289 F.R.D. 374 (D.D.C. 2013) ........................................................................................ 24
`
`Bragg v. Sw. Health Sys., Inc.,
`2020 WL 3963714 (D. Colo. July 13, 2020) .................................................................. 14
`
`Browder v. City of Albuquerque,
`187 F. Supp. 3d 1288 (D.N.M. 2016) .......................................................................passim
`Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc.,
`244 F.R.D. 614 (D. Colo. 2007) ..................................................................................... 14
`
`DR Distribs., LLC v. 21 Century Smoking, Inc.,
`2021 WL 185082 (N.D. Ill. Jan. 19, 2021) ............................................................... 15, 22
`Ehrenhaus v. Reynolds,
`965 F.2d 916 (10th Cir. 1992) ........................................................................................ 25
`
`Ellis v. Hobbs Police Dep’t,
`2020 WL 1041688 (D.N.M. Mar. 4, 2020) ..........................................................11, 13, 25
`Equal Emp. Opportunity Comm’n v. JetStream Ground Servs. Inc.,
`878 F.3d 960 (10th Cir. 2017) ........................................................................................ 12
`
`McQueen v. Aramark Corp.,
`2016 WL 6988820 (D. Utah Nov. 29, 2016) .................................................................. 16
`
`Moody v. CSX Transp., Inc.,
`271 F. Supp. 3d 410 (W.D.N.Y. 2017) ............................................................... 12, 21, 22
`
`Orbit One Commc’ns, Inc. v. Numerex Corp.,
`271 F.R.D. 429 (S.D.N.Y. 2010) .................................................................................... 24
`
`Paisley Park Enters., Inc. v. Boxill,
`330 F.R.D. 226 (D. Minn. 2019)............................................................................... 12, 21
`U.S. ex rel. Baker v. Cmty. Health Sys., Inc.,
`2012 WL 12294413 (D.N.M. Aug. 31, 2012) ......................................................... passim
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`Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 4 of 34
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`TABLE OF AUTHORITIES (cont.)
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`Page(s)
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`United States v. Gaubert,
`499 U.S. 315 (1991) ........................................................................................................ 18
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`Villanueva Echon v. Sackett,
`809 F. App’x 468 (10th Cir. 2020) ................................................................................. 25
`
`Rules 
`
`Fed. R. Civ. P. 37 ................................................................................................................. passim
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`Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 5 of 34
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`Pursuant to Federal Rule of Civil Procedure 37(b) and (e), Plaintiffs the Navajo Nation and
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`the State of New Mexico (together, the “Sovereign Plaintiffs”), hereby move for sanctions against
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`Defendants the United States of America and the United States Environmental Protection Agency
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`(“EPA”) (together, the “Federal Parties”) for spoliating evidence in violation of a Court Order and
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`with the intent to deprive the Sovereign Plaintiffs of information that should have been preserved.
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`Pursuant to Local Rule 7.1(a), the Sovereign Plaintiffs determined the Federal Parties will oppose
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`this Motion.
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`INTRODUCTION
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`This Motion concerns the Federal Parties’ spoliation of evidence from the two most
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`important EPA witnesses in this case—On-Scene Coordinators (“OSCs”) Hays Griswold and
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`Steve Way. The spoliation was repeated and wide-reaching, resulting in the loss of
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`communications and documentation from both OSCs contemporaneous with and related to the
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`Gold King Mine Blowout. The Federal Parties’ excuses for their spoliation are implausible and
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`inconsistent. And though they destroyed or otherwise made inaccessible evidence from the OSCs’
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`EPA-issued devices by May 2016, the Federal Parties concealed their spoliation until October 23,
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`2020, only days after learning that depositions of both OSCs would go forward, and just two
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`months before discovery was set to close. Indeed, the Federal Parties negotiated with the parties
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`and presented to the Court a Preservation Order in December 2018 knowing that they could not
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`comply with its terms, having already spoliated ESI from both OSCs. After the entry, and in direct
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`violation of the Preservation Order, the Federal Parties rendered inaccessible or destroyed more
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`evidence: nearly one thousand documents and photographs from Mr. Griswold’s files that the
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`Federal Parties had identified for production, but which inexplicably went “missing” in August
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`Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 6 of 34
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`2020. Coupled with their effort to dispose of the tort claims before the spoliation surfaced through
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`a premature summary judgment motion filed just eight days after discovery opened (and for
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`reasons that were “somewhat misleading,” Dkt. 338 at 2), the only logical conclusion is that the
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`Federal Parties spoliated the evidence in bad faith.
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`The Sovereign Plaintiffs have been prejudiced by the Federal Parties’ spoliation.
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`Contemporaneous communications and documentation from the OSCs would bear directly on the
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`events and decisions that led to the Blowout and thus are relevant to proving the Sovereign
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`Plaintiffs tort claims and, in particular, that EPA and its contractors were negligent. For example,
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`the Federal Parties may have destroyed evidence that could corroborate the United States Bureau
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`of Reclamation’s (“BOR”) conclusion that Mr. Griswold was trying to open the Gold King Mine
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`on August 4 and 5, 2015, not merely preparing it for expert review ten days later and inadvertently
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`blowing it open. And the Federal Parties have exploited their spoliation, arguing that the Sovereign
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`Plaintiffs have “fail[ed] to cite any evidence” that Mr. Griswold was trying to open the mine. (See
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`Dkt. 1161 at 7.) But the Sovereign Plaintiffs have been deprived of evidence that could corroborate
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`BOR’s conclusion due to the Federal Parties’ widespread and intentional spoliation of Mr.
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`Griswold’s electronically stored information (“ESI”).
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`In sum, over the course of almost five years, the Federal Parties have spoliated six separate
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`sources of ESI unique to the two most important EPA witnesses in this case and concealed such
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`spoliation from the Court and the parties. Since the Federal Parties’ belated disclosure, the
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`Sovereign Plaintiffs have conducted discovery regarding the spoliation and negotiated with the
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`Federal Parties, in the hopes of agreeing to an appropriate remedy without the Court’s
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`involvement. Those efforts were unsuccessful, necessitating this Motion. Accordingly, the
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`Sovereign Plaintiffs seek sanctions pursuant to Federal Rule of Civil Procedure 37(b)(2) and
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`(e)(1)–(2).
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`I.
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`The OSCs’ Role in the Blowout.
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`BACKGROUND
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`According to OSC Griswold, EPA’s OSCs “direct[ed] whatever happen[ed] on site and
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`[were] responsible for whatever happen[ed] on site” at the Gold King Mine in 2014 and 2015.
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`(See Ex. 1 [Griswold Tr.] at 38:13–21.)1 Mr. Way was the lead OSC for EPA, and Mr. Griswold
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`temporarily relieved Mr. Way as OSC on August 4 and 5, 2015, while Mr. Way was on vacation.
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`(See Ex. 2 [EPA Office of Inspector General (“OIG”) Report] at 6, 18.) In Mr. Way’s absence,
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`Mr. Griswold decided to scrap the planning done by EPA and its contractors—Defendants
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`Environmental Restoration, LLC (“ER”) and Weston Solutions, Inc. (“Weston”)—between the
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`2014 and 2015 seasons because he decided it was “not relevant” to his work. (Ex. 1 at 136:2–6;
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`see also id. at 132:21–133:5, 137:6–25.) He did this (apparently) unbeknownst to the contractors,
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`both of whom claim to have been following the scrapped work plan. (See Ex. 2 at 18 (stating that
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`ER and Weston “did not proceed any differently with the replacement OSC directing the work”
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`and that they were “following the plan.”).) Mr. Griswold’s off-the-cuff plan proved ill-advised, as
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`his direction of ER’s excavation caused the Blowout. (See Ex. 3 [Federal Parties’ Supp. Response
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`to the Sovereign Plaintiffs’ RFA No. 39] (Federal Parties admitting that “actions of the EPA and
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`its contractor were an inadvertent cause in fact” of the Blowout).)
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`1 Pursuant to D.N.M.LR-Civ. 10.5, the Sovereign Plaintiffs obtained agreement from all parties
`to submit 75 pages of exhibits.
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`Before the Blowout, EPA issued OSCs Way and Griswold iPhones and iPads. (See Ex. 4
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`[Oct. 23, 2020 EPA Letter] at 2.) On August 11, 2015, EPA issued a litigation hold to its
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`employees, including Messrs. Way and Griswold. (See Ex. 5 [US 30(b)(6) Tr.] at 30:7–11.)2 In
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`the months that followed, both OSCs’ conduct became subject to multiple investigations—
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`including by EPA, EPA’s OIG, and BOR. Additionally, Mr. Griswold was being criminally
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`investigated for potentially false statements provided to EPA OIG investigators.3 Despite the
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`litigation hold and the pendent investigations, the Federal Parties repeatedly failed to preserve the
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`OSCs’ ESI.
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`II.
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`The Federal Parties’ Repeated and Wide-Reaching Spoliation of the OSCs’ ESI.
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`A. Mr. Griswold’s iPhones.
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`On November 23, 2015, EPA sent Mr. Griswold an email asking him to self-identify text
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`messages “related to Gold King” and forward the messages to his EPA email account. (See Ex. 6
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`[Nov. 23, 2015 Email from EPA to Griswold].) Mr. Griswold claims that he followed this
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`procedure. (Ex. 1 at 310:4–311:13.) EPA apparently did not agree, because in April 2016—eight
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`months after the Blowout, and while multiple federal investigations were underway—EPA
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`followed up and (once again) asked Mr. Griswold to self-identify text messages related to the
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`Blowout on his devices and send them to EPA for preservation. (See Ex. 7 [Apr. 20, 2016 Emails
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`Between EPA and Griswold].) Mr. Griswold was unable to complete this process and did not
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`2 After the Federal Parties’ spoliation surfaced, the Sovereign Plaintiffs deposed their Rule
`30(b)(6) representative on the preservation, collection, and production of the OSCs’ ESI.
`3 See, e.g., Jesse Paul, Criminal Investigation into Gold King Mine Spill confirmed; EPA’s tab
`reaches $29M, DENVER POST (August 1, 2016), https://www.denverpost.com/2016/08/01/gold-
`king-mine-spill-criminal-investigation/ (last visited May 4, 2021) (“Federal authorities have
`confirmed for the first time that a criminal investigation into the 2015 Gold King Mine spill is
`underway[.]).
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`preserve text messages from his iPhone. (Id.; Ex. 1 at 315:2–12.) Finally, on May 11, 2016, EPA
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`actually collected Mr. Griswold’s iPhone, having previously done nothing themselves to secure
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`the ESI contained therein. (See Ex. 5 at 96:8–18; Ex. 8 [Nov. 2, 2020 EPA Letter] at 2.) Upon
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`collecting Mr. Griswold’s iPhone, EPA made a backup but—according to the Federal Parties’
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`30(b)(6) witness—EPA “appears” to have forgotten the password, despite it being “so easy to
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`memorize that there would be no way [EPA] would ever forget it.” (Ex. 5 at 104:2–14 (emphasis
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`added).) With the password forgotten, (and inexplicably, no effort made to record it), the backup—
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`which would have contained any undeleted, unforwarded text messages from Mr. Griswold, as
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`well as the call log showing who he called before, during, and after the Blowout—was inaccessible,
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`as of May or June 2016. (See Ex. 4 at 2.) And EPA understood the issue “soon after Mr.
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`Griswold’s iTunes backup was created,” i.e., in or around May or June 2016. (See Ex. 5 at 108:1–
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`12 (“I think I would say that the technical problem arose soon after it was understood by the
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`organization here, soon after Mr. Griswold’s iTunes backup was created.”).)
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`After collecting the iPhone Mr. Griswold used during the Blowout, EPA issued him a new
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`one. (See Ex. 9 [Dec. 23, 2020 EPA Letter] at 1.) While the Federal Parties’ counsel claim that
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`EPA did not transfer the data from Mr. Griswold’s old iPhone to his new iPhone, (id.), their
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`30(b)(6) witness testified that he has “not confirmed that the transfer did not happen” and does
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`“not know if [it] occurred.” (Ex. 5 at 117:21–118:8.) But even if EPA did transfer ESI from Mr.
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`Griswold’s original iPhone to his new iPhone, EPA erased the new iPhone by resetting it to factory
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`settings in May 2018, supposedly to prevent the “suspension of email service.” (Ex. 9 at 1.)
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`B. Mr. Way’s iPhone.
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`Mr. Way testified that he used his EPA-issued iPhone to send and receive work-related
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`email and text messages and to take photographs onsite, and generally “as the tool that it was.”
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`(See Ex. 10 [Way Tr.] at 321:5–13; id. at 337:22–338:15 (Q: “So you . . . generally texted with the
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`people you were working with, and that was generally about the projects you were working on; is
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`that right?” A: “I -- I would agree, yeah.”).) Although Mr. Way claims not to recall when he first
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`spoke with Mr. Griswold after the Blowout, (id. at 338:16–339:20), records produced by the
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`Federal Parties show that Mr. Griswold called Mr. Way’s iPhone the night before, and the two
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`spoke for about twenty minutes. (See Ex. 11 [Mr. Way Call Log].)
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`Like with Mr. Griswold, EPA relied on Mr. Way to self-select and forward relevant text
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`messages from his iPhone after the Blowout. But Mr. Way testified that he did no such thing, and
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`that none of his text messages were preserved until EPA collected his iPhone in May 2016, upon
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`his retirement. (Ex. 10 at 331:5–332:23.) Just as with Mr. Griswold, EPA made a backup of Mr.
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`Way’s iPhone, but this time EPA managed not to render it inaccessible. (See Ex. 4 at 1.) Based
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`on information provided by the Federal Parties, the Sovereign Plaintiffs located roughly 200 text
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`messages from Mr. Way’s iPhone dated between October 20, 2015 (nearly three months after the
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`Blowout) and May 16, 2016 (five days before OSC Way retired), but none from before October
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`20, 2015. (USA_004045168–5365.)4 Defendant ER, however, has produced documents showing
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`that Mr. Way exchanged at least 245 Gold King Mine-related text messages—or 2.33 text
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`4 The Federal Parties identified their production Volume 48 as containing “the documents from
`the iTunes copy of the cell phone that the U.S. EPA assigned to Steven Way.” (See Ex. 24 [Dec.
`30, 2020 Production Letter].) To prevent burdening the Court with voluminous attachments, the
`Sovereign Plaintiffs simply reference the bates range for the text messages from Mr. Way in
`Volume 48. The Sovereign Plaintiffs will promptly provide the text messages upon request.
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`Case 1:18-cv-00744-WJ-KK Document 312 Filed 05/04/21 Page 11 of 34
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`messages per day—just with ER’s Response Manager, during the period between July 7 and
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`October 20, 2015. (See, e.g., Ex. 12 [Way and Francis Texts from July 24, 2015–August 21,
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`2015].)5 Thus, additional text messages relevant to the Gold King Mine from Mr. Way to others—
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`possibly to Mr. Griswold,6 others at EPA, or his friends and family—sent between July 7, and
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`October 20, 2015 were destroyed, either by EPA or by Mr. Way himself.
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`C. Mr. Way’s iPad.
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`When Mr. Way retired in May 2016, he also turned in his EPA-issued iPad. But, according
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`to the Federal Parties, EPA could not access the iPad “due to a screen encryption.” (Ex. 4 at 2.)
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`EPA claims that, because Mr. Way does not recall his password, it cannot access the ESI stored
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`on his iPad. (Id.) Having attempted to access it unsuccessfully “right around the time that [he]
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`retired,” the Federal Parties knew in or around May 2016 that OSC Way’s iPad was inaccessible.
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`(See Ex. 5 at 130:9–131:13.)
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`D. Mr. Griswold’s iPad.
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`Mr. Griswold testified that he used his iPad extensively for work related to the Gold King
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`Mine, including to take photos in the field. (Ex. 1 at 298:8–299:6.) But the Federal Parties did
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`not try to preserve ESI from Mr. Griswold’s iPad until he retired more than three years after the
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`spill. (Ex. 4 at 2.) During this unexplained delay, the data on the iPad had been “cleared” because
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`the iPad was “reset to factory settings.” (Id. at 3.) The Federal Parties’ 30(b)(6) witness stated
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`5 The Sovereign Plaintiffs can make all text messages between Messrs. Way and Francis sent
`during July 7 and October 20, 2015 available to the Court upon request.
`6 Indeed, OSCs Way and Griswold were “cubicle neighbors” and would “talk frequently even
`before” the Blowout. (See Ex. 1 at 118:23–25.) Thus, it is very likely the two exchanged
`communications regarding the work at the Gold King Mine contemporaneous with the Blowout.
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`that he did “not know why there was not data on [Mr. Griswold’s] iPad,” but it “appeared [that] it
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`had been reset to factory settings . . . before [Mr. Griswold] turned it in [to EPA].” (Ex. 5 at
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`131:21–132:25.) Mr. Griswold, however, testified that an EPA employee “wiped” the iPad at
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`some point after the Blowout, but before he turned it in, because “[i]t was not functioning
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`correctly.” (Ex. 1 at 301:22–302:8–25.)
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`E. Mr. Griswold’s OneDrive Account.
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`EPA backed up the OSCs’ EPA-issued laptops to an online cloud storage service,
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`Microsoft OneDrive. (Ex. 4 at 3.) EPA did not collect ESI from Mr. Griswold’s OneDrive account
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`until July or August 2020, almost five years after the Blowout. (Ex. 5 at 135:3–9.) Inexplicably,
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`after the Federal Parties identified relevant ESI from Mr. Griswold’s OneDrive for production,
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`two folders—titled “/Pictures/Gold King” and “/MyProjectDocuments/GoldKingMine”—were
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`deleted. (Ex. 4 at 3.) The folders contained around 800 photographs and 120 documents related
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`to Mr. Griswold’s work at the Gold King Mine, and the Federal Parties have no explanation for
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`why or how they went “missing.” (Ex. 5 at 134:6–137:1 (testifying that the United States does
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`“not know precisely what happened with” the folders “missing” from Mr. Griswold’s OneDrive).)
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`III. The Federal Parties Withhold Knowledge of the Spoliation for Years, Before
`Belatedly Disclosing It Only Two Months Before Fact Discovery Was Set to Close.
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`As described above, the Federal Parties were aware of the inaccessibility of Mr. Griswold’s
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`iPhone and Mr. Way’s iPad in May 2016, and Mr. Griswold’s iPad in October 2018. With this
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`knowledge, the Federal Parties negotiated a Stipulated Order Relating to the Preservation of
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`Potentially Relevant Information (“Preservation Order”) with the parties. The parties were unable
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`to reach an agreement, largely due to the Federal Parties’ insistence on excluding text messages
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`and “cell phone data such as call logs” as categories of documents that needed to be preserved, to
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`which the Sovereign Plaintiffs objected. (See Dkt. 111 at 5–6; Dkt. 111-3 at 2–3.) Ultimately, in
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`December 2018, the Federal Parties stipulated to a Preservation Order which provided, among
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`other things, that call logs and text messages from “individuals who substantively participated in
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`the 2014 and 2015 investigation of the Gold King Mine” needed to be preserved. (Dkt. 144 ¶ 7(g).)
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`In other words, despite knowing that they had already violated and could not comply with its terms,
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`the Federal Parties said nothing and submitted the Preservation Order to the Court. (See Ex. 13
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`[Dec. 6, 2018 Email from A. Lai to Judge Torgerson.])
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`Still withholding the destruction of ESI on the OSCs’ devices, the Federal Parties moved
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`for partial summary judgment only eight days after the opening of discovery in August 2019. With
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`the benefit of hindsight, their “somewhat misleading” justification for filing that motion can now
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`be viewed in context as an attempt to dispose of the tort claims before the spoliation surfaced.
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`(See Dkt. 338 at 2 (finding Federal Parties’ justification for filing a motion for summary judgment
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`“only eight days after the opening of discovery” to be “somewhat misleading”).) After the Court
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`denied their motion in October 2019, (id. at 3), the Federal Parties waited another year to inform
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`the parties of their widespread spoliation of evidence. (See Ex. 4.) In the meantime, contrary to
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`the Federal Rules and the Court’s Preservation Order, the Federal Parties spoliated even more of
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`Mr. Griswold’s custodial evidence—hundreds of documents and photographs on his OneDrive
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`that the Federal Parties had identified for production, but which inexplicably went “missing” in
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`August 2020. (Ex. 5 at 134:6–137:1.)
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`Even worse, the Federal Parties’ belated disclosure came with just two months left of fact
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`discovery, which was set to close on December 31, 2020.7 Indeed, the October 23, 2020 letter
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`arrived just two days after the Sovereign Plaintiffs requested a date for Mr. Way’s deposition, and
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`only weeks after a date for Mr. Griswold’s deposition had been confirmed. (See Ex. 14 [Oct. 21,
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`2020 Email from T. Camp].) So, despite being aware of the spoliation of the OSCs’ devices since
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`May 2016, the Federal Parties disclosed it only after they learned that the depositions of the OSCs
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`were unavoidable.
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`LEGAL STANDARD
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`“Putative litigants are under an ‘obligation to preserve evidence . . . when the party has
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`notice that the evidence is relevant to litigation or when a party should have known that the
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`evidence may be relevant to future litigation.’“ Browder v. City of Albuquerque, 187 F. Supp. 3d
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`1288, 1294 (D.N.M. 2016) (citation omitted). “Spoliation includes the intentional or negligent
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`destruction or loss of tangible and relevant evidence which impairs a party’s ability to prove or
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`defend a claim.” U.S. ex rel. Baker v. Cmty. Health Sys., Inc., 2012 WL 12294413, at *3 (D.N.M.
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`Aug. 31, 2012) (citation omitted). To prevent spoliation, “once a party reasonably anticipates
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`litigation, it must suspend its routine document retention/destruction policy and put in place a
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`‘litigation hold’ to ensure the preservation of relevant documents.” Id. at *2 (citation omitted).
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`7 While the parties had submitted a proposed order to the Court to extend this deadline, there was
`no guarantee the Court would adopt it. (See Ex. 15 [Sept. 25, 2020 Status Conf. Tr.] at 47:19–
`49:10 (“[I]f you all can reach an agreement on this issue, then you’re welcome to submit your
`proposal. I’m not promising you I’m going to agree with it without seeing what it is you’re
`talking about. If you’re contemplating changing case management deadlines, obviously I want to
`have some input into that.” (emphasis added)).) The Court ultimately adopted the parties’
`proposal on October 30, 2020. (Dkt. 889). This after two prior extensions to the fact discovery
`deadline, which was originally set to close on August 31, 2020. (Dkts. 303, 507, 641.) The
`Federal Parties have not explained why they did not disclose the inaccessibility of the documents
`much earlier, or why they did not make a “focused effort . . . to understand the problem and try
`to access the data” until the summer of 2020. (Ex. 5 at 106:20–107:25.)
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`But the party’s obligations do not end there—”that’s only the beginning.” Id. (citation omitted).
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`“Counsel must take affirmative steps to monitor compliance so that all sources of discoverable
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`information are identified and searched.” Id. (citation omitted).
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`“Sanctions for spoliation serve three distinct remedial purposes: punishment, accuracy, and
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`compensation.” Id. at *3 (citation omitted). “Spoliation sanctions are proper when ‘(1) a party
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`has a duty to preserve evidence because it knew, or should have known, that litigation was
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`imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.’“ Browder,
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`187 F. Supp. 3d at 1295 (citation omitted). Thus, though courts consider a “variety of factors” in
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`deciding whether to impose spoliation sanctions, two “carry the most weight: (1) the degree of
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`culpability of the party who lost or destroyed the evidence; and (2) the degree of actual prejudice
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`to the other party.” Id. (quoting Baker, 2012 WL 12294413, at *3). “[P]rejudice is shown when
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`the destroyed evidence goes to a crucial issue and the evidence at hand is conflicting.” Baker,
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`2012 WL 12294413, at *14; see also Browder, 187 F. Supp. 3d at 1299 (finding prejudice where
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`testimony of individual whose ESI had been spoliated “conflict[ed] with testimony of the
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`eyewitnesses and the findings of the internal investigations”).
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`Federal Rule of Civil Procedure 37(e) reflects these principles and provides that when a
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`party destroys ESI that “should have been preserved” because it “failed to take reasonable steps to
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`preserve [the ESI], and it cannot be restored or replaced through additional discovery,” the Court
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`may order sanctions. Courts within the Tenth Circuit have “generally applied a preponderance of
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`the evidence standard” for Rule 37(e). Ellis v. Hobbs Police Dep’t, 2020 WL 1041688, at *5
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`(D.N.M. Mar. 4, 2020) (collecting cases).
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`Under Rule 37(e)(1), if the Court finds that the party deprived of evidence has been
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`prejudiced, it “may order measures no greater than necessary to cure the prejudice.” These
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`measures include, an “award of attorney fees,” Browder, 187 F. Supp. 3d at 1295, as well as
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`“forbidding the party that failed to preserve information from putting on certain evidence,
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`permitting the parties to present evidence and argument to the jury regarding the loss of
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`information, or giving the jury instructions to assist in its evaluation of such evidence or
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`argument.” Fed. R. Civ. P. 37 Advisory Committee Notes on 2015 Amendment.
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`Under Rule 37(e)(2), if the Court finds that a party spoliated evidence in bad faith, or “with
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`the intent to deprive another party of the information’s use in the litigation,” the Court “may
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`presume the lost information was unfavorable to the party.” See Equal Emp. Opportunity Comm’n
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`v. JetStream Ground Servs. Inc., 878 F.3d 960, 965–66 (10th Cir. 2017). The Court need not find
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`prejudice to impose sanctions under Rule 37(e)(2) because finding the requisite bad faith supports
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`“an inference that the opposing party was prejudiced by the loss of information that would have
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`favored its position.” Fed. R. Civ. P. 37 Advisory Committee Notes on 2015 Amendment. The
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`Court can infer bad faith from circumstantial evidence, including otherwise inexplicable
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`spoliation, as there often will not be “smoking gun” evidence of intent. See Paisley Park Enters.,
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`Inc. v. Boxill, 330 F.R.D. 226, 236 (D. Minn. 2019); see also Adams v. Gateway, 2006 WL
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`2563418, at *3–4 (D. Utah Mar. 22, 2006) (finding circumstantial evidence sufficient for inference
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`of bad faith where there was “no explanation” for missing emails and defendant “did everything it
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`could to avoid producing complete copies of all the relevant e-mails”); Ala. Aircraft Indus., Inc.
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`v. Boeing Co., 319 F.R.D. 730, 746 (N.D. Ala. 2017) (finding “unexplained, blatantly irresponsible
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`behavior” sufficient for bad faith determination); Moody v. CSX Transp., Inc., 271 F. Supp. 3d
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`410, 427, 431 (W.D.N.Y. 2017) (finding bad faith where defendant railroad’s explanation for loss
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`of “most important objective evidence” of how train accident occurred was “implausible”).
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`When the Court has issued a preservation order, spoliation sanctions are also appropriate
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`under Rule 37(b)(2) for violation of a court order. See Ellis, 2020 WL 1041688, at *4–8 (analyzing
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`spoliation sanctions under Rule 37(e) and (b), given the court’s entry of a preservation order). “To
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`redress the violation of a discovery order, the Court may impose any of the sanctions listed in Rule
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`37(b), as well as any ‘further just orders.’“ Id. at *7 (quoting Fed. R. Civ. P. 37(b)(2)(A)). Rule
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`37(b) lists, among other remedies, (1) “directing that . . . designated facts be taken as established
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`for purposes of the a