Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 1 of 22
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`
`
`In re: Gold King Mine Release in San Juan
`County, Colorado on August 5, 2015
`
`This Document Relates to:
`No. 16-cv-465-WJ/LF
`No. 16-cv-931-WJ/LF
`No. 18-cv-319-WJ
`No. 18-cv-744-WJ
`
`
`
`
`
`
` No. 1:18-md-02824-WJ
`
`
`SGC’s MOTION FOR SANCTIONS UNDER
`FEDERAL RULE OF CIVIL PROCEDURE 37(e)
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`

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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 2 of 22
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`TABLE OF CONTENTS
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`I. INTRODUCTION .................................................................................................................... 1
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`II. FACTUAL BACKGROUND ................................................................................................. 1
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`III. STANDARD OF REVIEW .................................................................................................. 5
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`IV. ARGUMENT ......................................................................................................................... 7
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`A.
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`B.
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`C.
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`D.
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`The Federal Parties’ Willful Failures Have Resulted In The Permanent
`Destruction Of Highly Relevant Evidence. ............................................................ 7
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`The Federal Parties’ Failure To Adequately Preserve Evidence Has Severely
`Prejudiced SGC. .................................................................................................... 10
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`The Sheer Volume Of Documents Produced By The Federal Parties Does Not
`Excuse Or Cure The Prejudice Caused By The Spoliation................................... 12
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`Sanctions Should Be Imposed Against The Federal Parties For Discovery
`Misconduct. ........................................................................................................... 15
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`E.
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`The Sanctions Requested Are Proportional And Appropriate. ............................. 17
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`V. CONCLUSION...................................................................................................................... 18
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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 3 of 22
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`Cases
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`TABLE OF AUTHORITIES
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`Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 WL 1328483, at *5
`(D. Colo. May 12, 2009) ............................................................................................................. 7
`
`Baker v. Community Health Systems, Inc., 2012 WL 12294413 (D. NM. Aug. 31 2012) ........... 15
`
`Benton v. Dlorah, Inc., 2007 WL 3231431, at *4 (D. Kan. Oct. 30, 2007) ............................ 15, 16
`
`Chambers v. NASCO, Inc., 501 U.S. 32 (1991) .............................................................................. 6
`
`Ernest v. Lockheed Martin Corp., 2008 WL 2945608, *1 (D. Colo. July 28, 2008) ..................... 6
`
`Jordan F. Miller Corp v. Mid-Continent Aircraft Serv., Inc., 139 F.3 912, 1998 WL 68879, at *3
`(10th Cir Feb. 20, 1998) ........................................................................................................... 5, 7
`
`Lee v. Max Int’l, LLC., 683 F. 3d 1318 (10th Cir. 2011) ................................................................. 5
`
`McCargo v. Tex. Roadhouse, Inc., 2011 WL 1638992, at*2 (D. Colo. May 2, 2011) ................... 6
`
`Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976) ................................ 6, 15
`
`Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp.
`2d 456 (S.D.N.Y. 2010) ............................................................................................ 7, 10, 11, 15
`
`Philips Elec. N. Am. Corp. v. BC Tech., 773 F. Supp. 2d 1149 (D. Utah 2011) ............ 6, 7, 15, 16
`
`Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) ........................ 16
`
`Silverstri v. Gen. Motors Corp., 271 F. 3d 583 (4th Cir. 2001) ....................................................... 6
`
`Turner v. Pub. Serv. Co. of Colo., 563 F 3d. 1136 (10th Cir. 2009) ............................................... 6
`
`U.S. ex rel. Baker v. Community Health Systems, Inc., 2012 WL 12294413, at * 3 ...................... 6
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`U.S. v. Hardage, 982 F.2d 1436 (10th Cir. 1992)......................................................................... 17
`
`Zubulake v. UBS Warburg LLC, 229 F.R.D. 422 (S.D.N.Y. 2004) .................................... 7, 15, 16
`
`
`
`Rules
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`Fed. R. Civ. P. 37 ........................................................................................................ 1, 5, 6, 17, 18
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`Rule 26(b)(1) ................................................................................................................................... 7
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`Rule 502(d) ............................................................................................................................... 4, 18
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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 4 of 22
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`I. INTRODUCTION
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`Pursuant to Federal Rule of Civil Procedure 37(e) and the inherent authority of this
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`Court, Defendant Sunnyside Gold Corporation (“SGC”) moves for sanctions against the Federal
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`Parties to remedy the harm caused by the Federal Parties’ discovery misconduct and to deter
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`such conduct going forward. Counsel for SGC conferred with counsel for the Federal Parties’
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`regarding the underlying spoliation issues and could not resolve this matter without Court
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`involvement.
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`II. FACTUAL BACKGROUND
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`The Federal Parties failed to uphold their duty to ensure preservation of unquestionably
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`relevant documents, data, and electronically stored information (“ESI”) in the custody of the
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`Environmental Protection Agency (“EPA”). Despite issuing a legal hold notice, the Federal
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`Parties and the EPA waited almost nine months to take any steps to ensure that key EPA
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`personnel would preserve ESI on their devices and failed to take any steps to ensure that the
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`content of those key devices was otherwise maintained. The Federal Parties disregard of their
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`preservation obligations has directly prejudiced SGC’s ability to defend itself against claims in
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`this litigation as well as SGC’s ability to pursue an affirmative due process claim. The missing
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`ESI relates to the two most critical EPA employees—Steve Way and Hays Griswold.
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`In an October 23, 2020 letter, the Federal Parties informed all parties regarding
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`circumstances that arose during the process of collecting responsive documents, ESI, and related
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`data. Although the Federal Parties insist that they implemented reasonable steps to preserve
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`potentially relevant data on mobile phones and devices, most of the data on these devices was
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`lost. As set out more fully by the Sovereign Plaintiffs’ Motion for Sanctions Due to the Federal
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`1
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`Parties Spoliation of Evidence (Doc. 1179),1 the Federal Parties’ failures include the following
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`undisputed facts: (1) Mr. Way’s iPad can no longer be accessed due to a screen encryption from
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`a forgotten password; (2) Mr. Griswold’s iPad was reset to “factory settings” and the ESI
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`contained therein destroyed; (3) certain folders from Mr. Griswold’s OneDrive account are now
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`missing after they were previously retrieved, including Gold King related documents and photos;
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`and (4) the call log reflecting text messages from Mr. Griswold’s 2014 iPhone cannot be
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`extracted. (See Doc. 1179-4, Oct. 23, 2020 Letter from Nick Morales to Counsel).
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`The Federal Parties assert that the “screen encryption” on Mr. Way’s iPad could be
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`unlocked by a password, “Mr. Way does not recall the password he used for his iPad prior to
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`retirement, and he cannot locate a password for it.” Id. at 6. No explanation was given as to why
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`the Federal Parties did not obtain Mr. Way’s password before he retired. Nor was an explanation
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`given regarding how this lapse complied with the Federal Parties’ ongoing duty to monitor their
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`litigation hold.
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`A meet and confer conference was held on October 27, 2020 regarding the scope of the
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`Federal Parties’ discovery and the failure to preserve highly relevant ESI. During the meet and
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`confer, the Federal Parties’ failed to answer several questions about the collection, preservation
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`and production of responsive information from Hays Griswold and Steve Way.
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`On November 2, 2020, the Federal Parties sent a follow up letter. While this letter tried
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`to resolve several questions that the Federal Parties could not previously answer, the Federal
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`Parties were still unable to explain why Mr. Griswold’s iPad was reset to factory settings or to
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`confirm that the parties had received all of Mr. Griswold’s relevant text messages.
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`1 SGC incorporates the arguments made by the Sovereign Plaintiffs in Doc. 1179. To avoid
`duplication and for the ease of the Court, we incorporate those argument rather than restating
`them in full.
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`2
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`On December 23, 2020, the Federal Parties’ sent another follow up letter regarding Mr.
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`Griswold’s iPhone. This letter confirmed that Mr. Griswold was issued an iPhone in August or
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`September of 2014 (“2014 iPhone”). Inexplicably, EPA delayed until May or June of 2016
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`before collecting the 2014 iPhone for the purpose of preserving data related to the Gold King
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`Mine spill. The EPA issued Mr. Griswold a replacement iPhone around the same time they
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`finally took custody of the 2014 iPhone (“2016 iPhone”). The EPA does not believe that any of
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`the information from the 2014 iPhone was transferred to the 2016 iPhone. In May 2018, EPA’s
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`Mobile Device unit determined that Mr. Griswold’s 2016 iPhone was not enrolled in Apple’s
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`Device Enrollment Program and was in danger of suspension of email service. To enroll the
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`2016 iPhone, the phone was reset to factory settings and then reactivated, without first preserving
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`whatever data the phone contained. Upon Mr. Griswold’s retirement in October of 2018, EPA
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`finally took custody of the 2016 iPhone and preserved it. While the Federal Parties’ were able to
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`preserve 2016 iPhone data after Griswold’s retirement, most of that information is irrelevant to
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`the Gold King Mine Spill. As for the 2014 iPhone, an encrypted backup was created with a
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`password “so easy to memorize that there would be no way they would ever forget it.” The
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`password has been forgotten and the backup is inaccessible. (Doc. 1179-5 at 4).
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`After no resolution, the Federal Parties’, the Sovereign Plaintiffs, and SGC held a meet
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`and confer conference again on March 18th, 2021. At that time, to avoid a sanctions motion, the
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`Federal Parties offered to waive the attorney client privilege and attorney work product
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`protection for the documents identified on a spreadsheet provided to the parties, as well as
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`documents identified on the privilege log from production USA028 where Mr. Griswold and Mr.
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`Way were the custodian, sender, addressee or copied. The Federal Parties’ offered this waiver
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`on the following conditions: (1) the parties would forego filing any sanctions motion for any
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`claim of spoliation relating to Mr. Griswold and Mr. Way; (2) the documents produced would be
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`labeled as confidential or subject to the protective order for confidential information; and (3) the
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`documents to be released would be subject to a Rule 502(d) order which would preclude a
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`privilege waiver in any other litigation. (Exhibit 1—April 5, 2021 Email).
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`Mr. Way and Mr. Griswold are undisputedly two of the most important witnesses in this
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`litigation, as are their devices. The Federal Defendants identified them both as “key custodians”
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`of relevant information. (Exhibit 2 at 72). Mr. Way was the primary on-scene coordinator in
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`charge of the 2014 and 2015 Gold King Mine work. Mr. Way was on vacation the day of the
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`August 5, 2015 Gold King Blowout, and Mr. Griswold was filling in for Mr. Way as the On-
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`Scene Coordinator. The actions of Mr. Way and Mr. Griswold led directly to the Blowout. Mr.
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`Way retired from the EPA in 2016, and Mr. Griswold retired from the EPA in October of 2018.
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`With respect to their devices, the 30(b)(6) witness on the topic testified that “It was deemed a
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`very high priority to collect information from their phones, especially devices that had been in
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`use at the time of the release. Also knowing that all technology can physically degrade over time
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`included data within, it was deemed important to capture those devices and information from
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`those devices, and subsequently, the devices themselves. It was priority to the agency to collect
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`those.” (Exhibit 2 at 77). Despite recognizing the priority, the Federal Defendants failed to
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`collect the devices and preserve any information they contained.
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`Mr. Griswold and Mr. Way had numerous critical communications before, during, and
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`directly after the Gold King Mine Spill on a number of different devices, including their iPhones,
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`iPads, and Microsoft OneDrive accounts.2 Mr. Griswold and Mr. Way communicated to others
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`2 EPA provides Microsoft OneDrive accounts, a cloud-based network drive, to its employees to
`store work-related information.
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`via email, text message, phone calls and voicemail. Text messages, in particular, were only
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`retained on the iPhones themselves, and the Federal Parties recognized this fact. “[T]he
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`information, especially, we were looking for was texts because text messages are not backed up
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`to some sort of central server or cloud-based storage. We didn’t want people walking around
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`with devices that had information that was unique to the device only.” (Exhibit 2 at 78).
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`Nevertheless, the Federal Parties have caused these critical devices, communications, and related
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`ESI to be lost or made otherwise inaccessible.
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`The Federal Parties failed to meet their obligation to preserve and disclose evidence, that
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`evidence has been destroyed and or/ otherwise rendered inaccessible, and SGC has been
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`prejudiced as a result.
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`III. STANDARD OF REVIEW
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`The Federal Rules of Civil Procedure and the inherent powers of the federal courts
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`provide district courts with considerable authority to remedy discovery misconduct and to
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`enforce the “high duty” placed upon litigants to protect the integrity of the judicial process. Lee
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`v. Max Int’l, LLC., 683 F. 3d 1318, 1320 (10th Cir. 2011) (“District courts enjoy a very broad
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`discretion to use sanctions where necessary to insure that lawyers and parties fulfill their high
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`duty to insure the expeditious and sound management of the preparation of cases for trial.”) “A
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`federal court possesses the authority to impose…sanctions based on its inherent power to control
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`and supervise its own proceedings.” Jordan F. Miller Corp v. Mid-Continent Aircraft Serv., Inc.,
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`139 F.3 912, 1998 WL 68879, at *3 (10th Cir Feb. 20, 1998); Fed. R. Civ. P. 37. Sanctions for
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`discovery misconduct serve important purposes beyond ensuring justice as between the parties to
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`a particular case, including preventing the corruption of the judicial process and deterring those
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`who might be tempted to engage in similar conduct. See Nat’l Hockey League v. Metro. Hockey
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`Club, Inc., 427 U.S. 639, 643 (1976); see also Philips Elec. N. Am. Corp. v. BC Tech., 773 F.
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`Supp. 2d 1149, 1197,1212-13 (D. Utah 2011).
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`Spoliation is one form of discovery misconduct. Spoliation is defined as “the destruction
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`or significant alteration of evidence, or failure to preserve property for another’s use as evidence
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`in pending or reasonably foreseeable litigation.” McCargo v. Tex. Roadhouse, Inc., 2011 WL
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`1638992, at*2 (D. Colo. May 2, 2011). A court possesses authority to sanction a litigant for
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`spoliation under both Federal Rule of Civil Procedure 37 and pursuant to the Court’s inherent
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`authority. See Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, (1991); Silverstri v. Gen. Motors
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`Corp., 271 F. 3d 583, 590 (4th Cir. 2001); Fed. R. Civ. P. 37(b) and (c).
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`“Sanctions for spoliation of evidence are appropriate when (1) a party had a duty to
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`preserve the evidence because it knew, or should have known, that litigation was imminent, and
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`(2) the other party was prejudiced by the destruction of the evidence.” U.S. ex rel. Baker v.
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`Community Health Systems, Inc., 2012 WL 12294413, at * 3 (citing Turner v. Pub. Serv. Co. of
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`Colo., 563 F 3d. 1136, 1149 (10th Cir. 2009)). In determining whether sanctions are appropriate,
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`a court also must consider whether the missing documents or material would be relevant to an
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`issue at trial. Id. The moving party has the burden to prove, by a preponderance of the evidence,
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`that the opposing party failed to preserve evidence or destroyed it. Ernest v. Lockheed Martin
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`Corp., 2008 WL 2945608, *1 (D. Colo. July 28, 2008). Whether imposed under Rule 37 or
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`under the Court’s inherent authority, spoliation sanctions may take a variety of forms, including
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`monetary sanctions, adverse inferences, the preclusion of evidence, and dismissal. See Fed. R.
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`Civ. P. 37(b)(2).
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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 10 of 22
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`IV. ARGUMENT
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`THE FEDERAL PARTIES’ WILLFUL FAILURES HAVE RESULTED IN THE
`PERMANENT DESTRUCTION OF HIGHLY RELEVANT EVIDENCE.
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`A.
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`“To ensure that the discovery permitted by Rule 26(b)(1) does not become a futile
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`exercise, putative litigants have a duty to preserve documents or materials that may be relevant to
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`potential future litigation.” Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009
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`WL 1328483, at *5 (D. Colo. May 12, 2009); Philips, 773 F. Supp. 2d at 1195; Jordan F. Miller
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`Corp., 1998 WL 68879 at *5. To that end, “[o]nce a party reasonably anticipates litigation, it
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`must suspend its routine document retention/destruction policy and put in place a ‘litigation
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`hold’ to ensure the preservation of relevant documents” and ESI. Philips, 773 F. Supp. 2d at
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`1195; Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.
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`Supp. 2d 456, 466 (S.D.N.Y. 2010). When litigants fail to take the necessary steps to ensure
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`relevant evidence is preserved, “the integrity of the judicial process is harmed, and the courts are
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`required to fashion a remedy.” Philips, 773 F. Supp. 2d at 1196.
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`After issuing a litigation hold, the Federal Parties’ failed to exercise the necessary
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`oversight to ensure that relevant documents were actually preserved. “A party’s discovery
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`obligations do not end with the implementation of a ‘litigation hold’—to the contrary, that’s only
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`the beginning. Counsel must oversee compliance with the litigation hold, monitoring the party’s
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`efforts to retain and produce the relevant documents.” Zubulake v. UBS Warburg LLC, 229
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`F.R.D. 422, 432 (S.D.N.Y. 2004).
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`Here, the litigation hold distributed to personnel in EPA’s office, transmitted and
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`overseen by EPA attorney Richard Sisk, was clearly inadequate to preserve all potentially
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`relevant evidence. Mr. Griswold received a litigation hold from Richard Sisk, on August 11,
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`20215 and again August 18, 2015, shortly after the spill. (Exhibit 3 – USA_003873508; Doc.
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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 11 of 22
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`1179-5 at 2). This litigation hold pertained to “Gold King Mine Release Incident” and requested
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`that personnel “please click the link below to review the current custodian list and answer the
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`questioner.” The electronic devices of key witnesses were not immediately sequestered or
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`backed up, nor were sufficient steps taken to preserve whatever information the devices
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`contained.
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`As a result of the Federal Parties’ inadequate litigation hold and followup, critical
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`documents and materials were certainly lost or destroyed. (Doc. 1179-5 at 3–5). For example,
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`while a backup of Mr. Griswold’s 2014 iPhone in use at the time of the Blowout was eventually
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`made, the Federal Parties’ are only able to extract and produce the call log from Mr. Griswold’s
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`iPhone from April of 2016 to present, seven months after the Blowout. (Id.). The Federal
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`Parties’ are altogether unable to produce the original text message log from Mr. Griswold’s 2014
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`iPhone. They knew there were problems with accessing the encrypted backup shortly after the
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`backup was created in May or June of 2016, (Doc. 1179-5 at 4–5), yet they waited until October
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`of 2020 to disclose the issue.
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`EPA employees were directed to forward any potentially relevant text messages on their
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`work phones to an EPA email account for preservation. This approach gave EPA employees the
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`ability to self-select which text messages they sent for preservation, an inherently flawed
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`process. There is no way to confirm that Mr. Griswold or Mr. Way sent all relevant text
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`messages to the EPA account for preservation. As noted in the Sovereign Plaintiffs’ Motion,
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`EPA OIG investigators questioned Mr. Griswold’s credibility regarding representations made in
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`that timeframe. (Doc. 1179 at 20; Doc. 1179-16 at 2–3). Furthermore, the Federal Parties have
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`indicated that Mr. Griswold did not even know how to send text messages to the EPA for
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`preservation. (Doc. 1179-7). While some text messages were produced on November 21, 2019
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`(Production USA006), and December 30, 2019 (Production USA015), the data the Federal
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`Parties’ did produce was not in compliance with the mutually agreed upon Document Production
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`Protocol Order, Doc. 171, and was not complete.
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`ESI is no longer accessible from either Mr. Way’s or Mr. Griswold’s iPads due to the
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`Federal Parties lack of preservation efforts. Mr. Way and Mr. Griswold were issued iPads by the
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`EPA in July of 2015, one month prior to the Gold King Mine Spill. Mr. Way’s iPad can no
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`longer be accessed due to screen encryption. The Federal Parties’ allege that Mr. Way does not
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`recall the password he used for his iPad before his retirement, and the EPA did not collect that
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`password. Without the password, collecting the device is meaningless.
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`Even more concerning, Mr. Griswold’s iPad has been reset to factory settings, a process
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`which cleared any data the device might have contained, despite the existence of a litigation
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`hold. When the Federal Parties’ 30(b)(6) witness was asked whether the iPad was reset to
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`factory settings before Mr. Griswold turned it in, he testified:
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`It would have occurred before he turned it in, yes. I will say more precisely,
`speaking to the service desk that accepted that I pad or received it, they said there
`was not data on it, or it had been reset to factory settings, you know, and the only
`type of data that would have been on it was the type of data that would be part of
`the device that had been reset to factory settings.
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`(Doc. 1179-5 at 8–9). The iPad in question was an EPA issued device that Mr. Griswold used
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`for work, including for work on the Gold King project. The Federal Parties failed to take
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`custody of the device, failed to create a backup of the device, and instead allowed Mr. Griswold
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`to restore the device to factory settings before returning it. A device restored to factory settings,
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`like an encrypted device without a password, is useless.
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`Finally, ESI stored on Mr. Griswold’s Microsoft OneDrive can no longer be located. The
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`Federal Parties’ were able to identify and determine that information from Mr. Griswold’s
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`OneDrive account contained information relating to the Gold King Mine, but the information
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`could no longer be identified at the time of collection. The Federal Parties’ could not locate the
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`following two folders during the collection process: (1) a folder at the pathway
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`“Griswold_hays_epa_gov/Pictures/GoldKing” and (2) a folder with pathway
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`“Griswold_hays_epa_gov/Document/MyProjectDocuments/GoldKingMine.” The Federal
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`Parties are unable to determine whether the information contained within the two missing folders
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`has been collected and produced from other sources.
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`B.
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`THE FEDERAL PARTIES’ FAILURE TO ADEQUATELY PRESERVE
`EVIDENCE HAS SEVERELY PREJUDICED SGC.
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`The prejudice resulting from Federal Parties’ willful misconduct is both apparent and
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`presumed. As a general matter, “[r]elevance and prejudice may be presumed when the spoliating
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`party acted in bad faith or in a grossly negligent manner.” Pension Comm., 685 F. Supp. 2d at
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`476. The facts set forth above demonstrate at least gross negligence. Regardless, the Court need
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`not presume the relevance of the lost ESI and the resulting prejudice to SGC because it is
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`apparent that SGC’s ability to mount a comprehensive defense or to pursue its due process
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`counterclaim has been significantly compromised by the Federal Parties’ misconduct.
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`The ESI that has been destroyed due to Federal Parties’ preservation failures is of
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`unquestionable relevance. Among other things, Mr. Griswold’s and Mr. Way’s files would have
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`(1) revealed the timing and extent of the spill; (2) Mr. Griswold’s and Mr. Way’s culpability for
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`the spill; and (3) Mr. Griswold and Mr. Way and perhaps other’s decision to look to SGC to pay
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`for cleaning up the Blowout EPA had caused. Given their role as EPA On-Scene Coordinators,
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`Mr. Way’s and Mr. Griswold’s files would have contained the most extensive repository of data
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`before, during, and after the Blowout.
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`Critical to SGC’s claims and defenses in this litigation is the fact that after the Blowout,
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`Mr. Griswold and the EPA attempted to shift liability away from themselves to third parties like
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`SGC. Mr. Griswold testified when asked if he felt responsible for the Blowout, “Again, I was in
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`charge. So I guess the buck stopped with me, right?” (Exhibit 4, Griswold Transcript at 504, 1-
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`11). Despite accepting responsibility for causing the Blowout, Griswold quickly suggested that
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`the EPA should be looking for another party to pay for some or all of the costs of cleaning up the
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`Blowout he had caused.
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`Q: Why did you think EPA should be pursuing a PRP?”
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`A: Because of all that happened. And if we could find a PRP, we could at least
`help with some of EPA’s costs.
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`Q: That would be the purpose of the PRP, it would be somebody to share the cost
`that EPA was incurring, right?
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`A: Say that again?
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`Q: The purpose of a PRP is it would be somebody who could share the cost that
`EPA was incurring, right?
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`A. Or get a total cost recovery, yes.
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` (Exhibit 4, Griswold Transcript at 528, 1-14). The PRP Mr. Griswold had in mind was SGC
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`and its corporate affiliate, Kinross Gold Corporation.
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`Mr. Griswold stated in in an email sent from his iPad that he would be able to “provide
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`some leads” so the EPA could find a PRP to pay for EPA’s Blowout costs. (Exhibit 5 –
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`Deposition Exh. Griswold 869). Whether additional emails or texts addressed this topic is
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`unknown. Griswold’s desire to shift the cost of the Blowout to another party was an effort
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`undertaken on the very devices EPA has now made inaccessible.
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`
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`It is highly likely that Mr. Griswold’s and Mr. Way’s electronic devices would have
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`contained additional relevant evidence. See Pension Comm., 685 F. Supp. 2d at 478 (“[I]t is
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`Case 1:18-cv-00744-WJ-KK Document 327 Filed 05/24/21 Page 15 of 22
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`impossible to know the extent of the prejudice suffered by the [defendant] as a result of those
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`emails and documents that have been permanently lost due to plaintiffs’ conduct. The volume of
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`missing emails can never be learned, nor their substance be known.”) What is known is that on
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`August 17, 2015, twelve days after the Blowout, as he pondered an explanation for the disaster
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`he had caused, Griswold wrote in an email to Steve Way, “Steve I have been circulating this to
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`myself as I add to it mostly because I am not confident enough yet to save it as draft on my Ipad.
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`As I add to it I send it to myself.” (Exhibit 6 – Deposition Exhibit 866). While the email has
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`been preserved, anything actually saved to the iPad has been lost. At the very least, it is clear
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`that the wholesale destruction of these key players’ electronic documents has directly
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`undermined SGC’s access to critical evidence.
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`To make matters worse, the Federal Parties’ expansive assertion of the deliberative
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`process, attorney-client, and attorney work product privilege in connection with Mr. Griswold
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`and Mr. Way’s records has further precluded SGC’s ability to access vital information. As a
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`result, SGC has been forced to expend considerable time, money and effort in discovery
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`attempting to uncover the extent of the Federal Parties’ knowledge. In recreating what Mr.
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`Griswold’s and Mr. Way’s destroyed documents likely would have shown, SGC has deposed
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`numerous witnesses, issued repeated document requests, and spent countless hours attempting to
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`piece together evidence of the government’s knowledge. These resources could have been
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`conserved had Mr. Griswold’s and Mr. Way’s documents simply been appropriately preserved.
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`C.
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`THE SHEER VOLUME OF DOCUMENTS PRODUCED BY THE FEDERAL
`PARTIES DOES NOT EXCUSE OR CURE THE PREJUDICE CAUSED BY THE
`SPOLIATION.
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`
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`During the meet and confer process and in response to an email from the Sovereign
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`Plaintiffs, the Federal Parties have argued that “there is no indication of any unique information
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`loss, given the abundance of information produced and the likelihood that any ESI that is
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`inaccessible or lost exists in some other location that has been produced.” (Exhibit 7, April 15,
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`2021 Email).
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`
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`As set out more fully in the Sovereign Plaintiffs’ brief, the Federal Parties waited a
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`significant amount of time before disclosing the spoliation issues, despite extensive eDiscovery
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`planning meetings between the parties weekly and later bi-weekly, starting in August of 2019
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`and running through May of 2020. The problems created by the delayed notification of the
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`spoliation are compounded by the discovery production from the Federal Parties. Fact discovery
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`began on August 5, 2019, and it did not close until January 29, 2021. Docs. 257; 889. Yet,
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`despite knowing the issues with ESI related to Mr. Way and Mr. Griswold, the Federal Parties
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`chose to delay production of the majority of relevant and responsive documents from those
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`custodians until October of 2020, at a time when fact discovery was set to close on December 31,
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`2020 and the parties were completing multiple depositions every week. Of the approximately
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`30,715 records listing Mr. Way or Mr. Griswold as a custodian, approximately 14,327, or almost
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`half, were produced in or after October of 2020. This significantly delayed production further
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`prevented the parties from being able to timely evaluate what other depositions might have been
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`needed as a result of the spoliation or whether there were indications that unique information was
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`lost.
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`This timing issue was compounded by the back-loaded production schedule from the
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`Federal Parties overall. From October of 2020 (more than a year into fact discovery) through
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`May 3, 2021 (more than three months after fact discovery closed), the Federal Parties produced
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`more than 357,780 additional documents consisting of millions of pages. With just months left
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`before the fact discovery deadline, the Federal Parties produced nearly half of their entire
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`document production. There was no way for the parties to review and evaluate that large of a
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`document set produced so late in the discovery process to determine whether there is or could be
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`any accuracy to the Federal Parties’ representations that no unique information had been lost.
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`Remarkably, the Federal Parties have continued to produce documents withou