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`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
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`This Document Relates to Case:
`All Cases
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`
`No. 1:18-md-02824-WJ
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`
`THE FEDERAL PARTIES’ RESPONSE TO SOVEREIGN PLAINTIFFS’ MOTION FOR
`SANCTIONS BASED ON SPOLIATION OF EVIDENCE1
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`1 Pursuant to Local Rule 10.5, the Federal Parties obtained agreement from all parties to submit
`100 pages of exhibits.
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`i
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 2 of 34
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES.................................................................................................... ii.
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`FACTUAL BACKGROUND ..................................................................................................2.
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`
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`I.
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`EPA Took Reasonable Steps to Preserve ESI, and the Federal Parties
`Timely and Transparently Disclosed the Issues When They Learned
`ESI Was Potentially Lost .......................................................................................2.
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`A. Measures to Preserve and Recover ESI on Mobile Devices ................................3.
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`B. Measures to Preserve and Recover Mr. Griswold’s ESI .....................................7.
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`C. The Federal Parties Timely Disclosed the Potential Loss of ESI..........................8.
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`II.
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`The Federal Parties Have Produced Much of the Missing ESI from Other
`Sources, and the Loss of Unique and Material ESI Is Highly Unlikely ................... 10.
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`A. Almost All ESI from Messrs. Griswold’s and Way’s Mobile Devices Has
`Been Produced and Any Lost Text Messages Are Unlikely to Be Material ....... 11.
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`B. The ESI from Mr. Griswold’s OneDrive Was Likely Duplicative of ESI
`Collected from Other Sources ......................................................................... 13.
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`C. The Federal Parties Have Produced Numerous Documents in this Litigation,
`Including a Plethora of Contemporaneous Statements from the OSCs .............. 14.
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`ARGUMENT ........................................................................................................................ 15.
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`I.
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`II.
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`No Sanctions Are Warranted Under Rule 37(e) ..................................................... 16.
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`A. The Federal Parties Took Reasonable Steps to Preserve ESI, and the Loss of
`Unique and Material ESI Is Unlikely .............................................................. 16.
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`B. There Was No Prejudice as Required for Sanctions Under Rule 37(e)(1) .......... 20.
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`C. There Was No Intent to Deprive the Sovereign Plaintiffs of ESI as Required
`for Sanctions Under Rule 37(e)(2) ................................................................... 22.
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`No Sanctions Are Warranted Under Rule 37(b) ................................................... 24.
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`III.
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`The Sovereign Plaintiffs’ Requested Sanctions Are Inappropriate ......................... 26.
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`CONCLUSION ..................................................................................................................... 27.
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`ii
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 3 of 34
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`TABLE OF AUTHORITIES
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`FEDERAL CASES
`
`
`Baker v. Community Health Servs.,
`2012 WL 12294413 (D.N.M. 2012) ............................................................................... .27.
`
`
`Courser v. Michigan House of Representatives,
`404 F. Supp. 3d 1125 (W.D. Mich. 2019),
`Aff’d, 831 F. App’x 161 (6th Cir. 2020) .......................................................................... .17.
`
`
`Cox v. Swift Transportation Co. of Arizona, LLC,
`2019 WL 3573668 (N.D. Okla. 2019) ............................................................................ .21.
`
`
`Ellis v. Hobbs Police Dep’t,
`2020 WL 1041688 (D.N.M. Mar. 4, 2020) ..................................................................22, 25.
`
`First Am. Title Ins. v. Nw. Title Ins. Agency,
`2016 WL 4548398 (D. Utah 2016) ................................................................................ .20.
`
`
`Liles v. Washington Tru Sols.,
`2007 WL 2298437 (D.N.M. 2007) ................................................................................. .26.
`
`Living Color Enterprises v. New Era Aquaculture,
`2016 WL 1105297 (S.D. Fla. 2016) ............................................................................... .19.
`
`
`Love v. Med. Coll. of Wisconsin,
`350 F. Supp. 3d 730 (E.D. Wis. 2018) ............................................................................ .20.
`
`
`MB Realty Grp. v. Gaston Cty. Bd. of Educ.,
`2019 WL 2273732 (W.D.N.C. 2019) ............................................................................. .21.
`
`
`Newberry v. San Bernardino,
`750 F. App’x 534 (9th Cir. 2018) ..............................................................................21, 22.
`
`
`Philmar Dairy v. Armstrong Farms,
`2019 WL 3037875 (D.N.M. 2019) ................................................................................. .22.
`
`Pugh-Ozua v. Springhill Suites,
`2020 WL 6562376 (S.D.N.Y. 2020) .............................................................................. .20.
`
`Steves & Sons. v. JELD-WEN,
`327 F.R.D. 96 (E.D. Va. 2018) ...................................................................................... .18.
`
`
`Tom v. S.B., Inc.,
`280 F.R.D. 603 (D.N.M. 2012) ..................................................................................... .25.
`
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`iii
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`Villanueva Echon v. Sackett,
`809 F. App’x 468 (10th Cir. 2020) ................................................................................ .26.
`
`Wolff v. United Airlines,
`2019 WL 4450255 (D. Colo. 2019) ............................................................................... .22.
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`
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`Wright & Miller, 8B Fed. Prac. & Proc. Civ. § 2284.2 (3d ed.) ..................................................... .18.
`
`
`BOOK
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`iv
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 5 of 34
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`The Federal Parties respectfully oppose the Sovereign Plaintiffs’ Motion for Sanctions.
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`As explained below, the motion is contrary to the factual record and should be denied. The
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`Federal Parties took extensive and reasonable measures to preserve and produce electronically
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`stored information (“ESI”)—placing over 1,000 custodians under a litigation hold and producing
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`nearly 700,000 documents. The Sovereign Plaintiffs focus on a limited set of ESI, mainly from
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`the iPads and iPhones of two employees created around the time of the Gold King Mine release
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`in July and August 2015. But to address concerns about the loss of that limited ESI, the Federal
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`Parties proactively offered to waive privileges for the documents of these two employees, even
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`though much of the ESI has been produced from other sources and any ESI that was lost was
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`likely duplicative or immaterial. The Court should reject the Sovereign Plaintiffs’ attempt to
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`characterize a limited loss of ESI—a minor occurrence considering the volume of ESI within a
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`major federal agency—as an alleged government conspiracy.
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`Based on their unsupported narrative, the Sovereign Plaintiffs seek sanctions to obtain a
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`presumption that the U.S. Environmental Protection Agency (“EPA”) “intended to open the
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`[Gold King] mine” on August 5, 2015, causing the Gold King Mine release as alleged in their
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`complaints. Doc. 1179 at 27; Doc. 7 at ¶¶ 101-04; Doc. 339 at ¶¶ 95-98. But every witness who
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`was at the mine that day consistently testified that there was no intent to open the mine; the goal
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`was to assess next steps by removing loose material in front of and above the adit blockage. Exs.
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`1-6. Lacking evidence for their theory, the Sovereign Plaintiffs’ now attempt to preclude
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`evidence contesting their allegations and seek to obtain, through sanctions, favorable rulings on
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`their negligence claim and the government’s Federal Tort Claims Act immunity argument when
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`they cannot prevail on the merits.
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`1
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`EPA took reasonable steps to preserve ESI during the five years after the release and
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`through discovery, and it timely disclosed in good faith a potential loss of some ESI in discovery.
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`While the Federal Parties regret the limited loss of ESI, there is no prejudice because the
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`productions were voluminous and contained the most important ESI, such as the emails of the
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`two employees in question, the core files for the site, and documents from four investigations
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`into the release. These productions make the loss of any unique and material ESI highly unlikely.
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`There is no evidence of intent to deprive any party of ESI. Sanctions are unwarranted based on
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`the facts and the law; the Court should deny this motion, particularly in light of the reasonable
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`accommodations made by the Federal Parties to account for the limited loss of ESI.
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`FACTUAL BACKGROUND
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`The nature of the Sovereign Plaintiffs’ motion necessitates an accurate recounting of the
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`facts. These facts show that the Federal Parties took extensive and reasonable steps to preserve
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`ESI in what was one of the broadest preservation efforts in EPA’s history. When the Federal
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`Parties learned that some ESI may have been lost, they investigated and timely disclosed those
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`issues during fact discovery on October 23, 2020, after appropriate due diligence. And
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`ultimately, much of the ESI the Sovereign Plaintiffs claim to be lost has been produced from
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`other sources; the loss of any unique and material ESI is highly unlikely.
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`I. EPA Took Reasonable Steps to Preserve ESI, and the Federal Parties Timely and
`Transparently Disclosed the Issues When They Learned ESI Was Potentially Lost.
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`EPA first issued a litigation hold related to the Gold King Mine release on August 11,
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`2015, six days after the release. Ex. 7 at 30:7-13. Since then, EPA has continually reviewed its
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`preservation duties and expanded the hold as necessary; today over 1,000 custodians are subject
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`to the litigation hold. Ex. 22 at ¶ 2. Where the ESI was particularly sensitive, EPA took
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`2
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`additional preservation measures, as was the case with text messages on mobile devices and the
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`ESI of key custodians, such as Hays Griswold and Steven Way.
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`A. Measures to Preserve and Recover ESI on Mobile Devices.
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`Shortly after the Gold King Mine release, EPA deemed the collection of ESI from cell
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`phones a “very high priority” because the devices “can physically degrade over time.” Ex. 7 at
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`77:15-22. After issuing the litigation hold on August 11, 2015, id. at 30:7-13, on November 23,
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`2015, EPA sent additional instructions for the preservation of texts, see Doc. 1179-6. The
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`instructions directed custodians to preserve “all messages related to Gold King” and provided
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`step-by-step directions for three ways to preserve texts with contacts for technical assistance. Id.
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`EPA sent the text preservation instructions to an estimated 718 custodians. Ex. 22 at ¶ 3.
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`EPA followed up on the preservation of texts with custodians in April 2016. Ex. 22 at ¶
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`4; Doc. 1179-7. Custodians had been instructed to manually preserve one text chain at a time.
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`See Doc. 1179-6. As one custodian said, preservation was “a very labor intensive process” and
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`added hours of work to existing duties. Ex. 13. This created a great burden for the agency, as
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`EPA sought to preserve texts through this process on approximately 500 cell phones. Ex. 22 at ¶
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`7. The scope of EPA’s attempt to preserve mobile devices was one of the broadest—if not the
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`broadest—preservation efforts in the agency’s history. Id.
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`EPA recognized the challenges and burdens of its manual text collection procedure and
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`considered alternative methods to preserve texts. EPA initially considered purchasing off-the-
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`shelf commercial software, but was concerned the software would not work due to the wide array
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`of devices used by the agency. Id. at ¶ 8. Instead, after consulting with staff and counsel, EPA
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`scheduled in-person meetings with key custodians, including Messrs. Griswold and Way, during
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`which custodians preserved texts while technical staff and counsel were present to assist. Ex. 7 at
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`3
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`71:13-72:23. At these same meetings, EPA also collected the key custodians’ phones and issued
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`new ones to further preserve the ESI on mobile devices. Id. at 77:8-12. In total, EPA collected 78
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`iPhones and preserved approximately 2,058 emails containing texts using the text message
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`preservation process. Ex. 22 at ¶ 7.
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`EPA held the in-person text preservation and cell phone exchange meetings in May 2016.
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`Ex. 7 at 72:16-18. EPA scheduled Messrs. Griswold’s and Way’s meetings for May 11 and May
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`16, 2016, respectively. Exs. 14; 15 (calendar invites). An EPA attorney and technical staff were
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`available to assist at both meetings. Id. (Michael Boydston, EPA Region 8 attorney on invite).
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`During his meeting, Mr. Griswold signed a form certifying compliance with the text preservation
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`instructions and received a new iPhone. Ex. 16; Ex. 7 at 96:12-16. Technical staff closely
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`supervised Mr. Griswold during the text preservation process because “he seemed to struggle
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`with the technical aspects.” Ex. 7 at 73:1-16. Mr. Way similarly complied with the text message
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`saving process. Id. at 69:15-20. Mr. Way did not receive a new cell phone due to his impending
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`retirement and instead returned his iPhone and iPad to EPA. Exs. 17, 18; Ex. 7 at 129:2-5.
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`EPA also created digital backups of Messrs. Griswold’s and Way’s iPhones. Ex. 7 at
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`101:1-8; Ex. 22 at ¶ 6; Doc. 1179-4. The creation of a digital backup was a “new process” with
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`which EPA was unfamiliar at the time. Ex. 7 at 103:13-17 (“We had never had to create backups
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`of I phones [sic] before.”). Although Mr. Griswold’s iPhone backup is no longer accessible
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`because the password to the backup was forgotten, id. at 103:21-104:14, the Federal Parties have
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`produced the backup of Mr. Way’s iPhone, Doc. 1179-24.
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`In June and July 2018, two years after collecting the mobile devices, EPA inventoried the
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`status of the devices as the Federal Parties sought to negotiate a preservation plan in this case.
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`Ex. 22 at ¶ 9; Doc. 43 at 2. Critically, EPA accessed Mr. Griswold’s iPhone and noted the
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`4
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`presence of a few texts. Ex. 22 at ¶ 9. EPA could not access Mr. Way’s iPhone because the
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`password no longer worked, and EPA could not reset the password because the phone was
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`disconnected from service. Id. Still, the ESI was preserved because EPA had access to the
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`backup of Mr. Way’s iPhone. Id. Thus, during the summer of 2018, EPA did not know that any
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`ESI had been lost from Messrs. Griswold’s and Way’s iPhones.
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`Nor were the Federal Parties aware—in 2018 or now—that any unique ESI had been lost
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`from the OSCs’ iPads. In July 2018, during EPA’s mobile device inventory, EPA reported it
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`could not access Mr. Way’s iPad due to the lack of a password. Id. at ¶ 10. In October 2018, Mr.
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`Griswold retired and returned his iPad after it had been reset to factory settings, Ex. 7 at 131:14-
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`132:18, although counsel was not informed of this until March 2019, Ex. 22 at ¶ 11. The iPads,
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`however, had been acquired only in July 2015, shortly before the release. Ex. 7 at 79:4-5. Mr.
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`Way told counsel he only used the iPad for emails, which are preserved on a central server. Id. at
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`79:4-5, 128:4-9; Ex. 23 at ¶ 15. Mr. Griswold told counsel that he only used his iPad for emails
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`and photos, stating further that he saved his photos to his computer. Ex. 23 at ¶ 14. As a result,
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`there is no known loss of ESI from the iPads despite the inability to access them.
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`Concurrent with EPA’s mobile device inventory process in July 2018, the Federal Parties
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`sought a preservation plan to alleviate the heavy burden of mobile device preservation on EPA,
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`not, as the Sovereign Plaintiffs contend, because EPA “had destroyed or rendered inaccessible
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`ESI on each of the OSC’s devices.” Doc. 1179 at 24. EPA had, at that time, collected 78 mobile
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`devices. Ex. 22 at ¶ 7. The burden on EPA was potentially even more expansive, as the Special
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`Master later noted that EPA “has hundreds, maybe thousands of employees who conceivably
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`have something on their phone that might be relevant.” Ex. 19 at 22:4-7. See also Doc. 43 at 6.
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`Further, nearly three years had passed since the Gold King Mine release, and the mobile devices
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`5
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`were degrading. EPA’s inventory process found that some devices no longer turned on, or the
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`original passwords no longer worked, such as on Mr. Way’s iPhone and iPad. Ex. 22 at ¶ 9.
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`The Sovereign Plaintiffs remained nonresponsive to the Federal Parties’ entreaties until
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`forced to discuss a preservation plan during a status conference on November 5, 2018. Ex. 19 at
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`14:11-21. See also Doc. 43 at 3 n.2. Only then did the Sovereign Plaintiffs suggest that
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`preservation could be limited to cell phones of “individuals that were on the ground at the mine
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`during the relevant time period, which is late July, early August of 2015.” Ex. 19 at 22:4-7, 23:1-
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`5. Based on this proposal, the parties agreed to preserve call logs and texts of “individuals who
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`substantively participated in the 2014 and 2015 investigation of the Gold King Mine,” as
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`reflected in the Preservation Order entered on December 6, 2018. Doc. 144 at 3.
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`After the Court denied the Federal Parties’ motion to dismiss on February 25, 2019, Doc.
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`164, EPA began to transfer its mobile devices to Leidos, the Department of Justice’s eDiscovery
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`contractor, on or about March 19, 2019. Ex. 23 at ¶ 18. Leidos received the OSCs’ iPhones on
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`April 12, 2019. Ex. 25 at ¶¶ 3, 8. Leidos accessed Mr. Griswold’s iPhone using an EPA-provided
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`password, but, besides 209 photos, a second layer of encryption prevented the extraction of ESI
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`for production. Id. at ¶¶ 4-5. Leidos confirmed that Mr. Way’s iPhone could not be accessed due
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`to the lack of a correct password, but Leidos accessed the backup copy of Mr. Way’s iPhone. Id.
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`at ¶¶ 9-10. Leidos received the OSCs’ iPads in August 2019 and confirmed that Mr. Griswold’s
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`had been reset, and Mr. Way’s could not be accessed absent a password. Id. at ¶¶ 11, 13.
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`After discovery commenced in August 2019, see Doc. 257, the Federal Parties considered
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`the use of additional measures to extract ESI from Mr. Griswold’s iPhone and to unlock Mr.
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`Way’s iPad. The Federal Parties’ initial focus was, however, on the production of ESI related to
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`the federal investigations of the Gold King Mine release, which the Sovereign Plaintiffs stressed
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`were key to their case and demanded to have before the end of 2019. Ex. 20 at 84:19-24; Doc
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`382-1. The COVID-19 pandemic then affected operations beginning in March 2020, leading to
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`an extension of all case management deadlines. Doc. 641. In July 2020, the Federal Parties
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`consulted with vendors who specialize in password cracking. Ex. 23 at ¶ 19. The Federal Parties
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`authorized vendors to use “brute force” applications to decrypt Mr. Griswold’s iPhone and
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`unlock Mr. Way’s iPad. The applications ran for 13 weeks from September 4, 2020, to
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`November 2, 2020, and made approximately 144,000,000,000 password attempts on Mr.
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`Griswold’s iPhone and 13,000,000 password attempts on Mr. Way’s iPad. Ex. 25 at ¶¶ 6, 15. The
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`attempts to access the devices cost $6,786, but they were not successful. Id.
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`In December 2020, the Federal Parties also investigated the possibility that the ESI on
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`Mr. Griswold’s original iPhone had been transferred to his replacement iPhone during the cell
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`phone replacement process in May 2016. See Doc. 1179-9 at 1. The Federal Parties found no
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`indication that any ESI had been transferred. Id. Moreover, during this investigation, the Federal
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`Parties learned that Mr. Griswold’s replacement iPhone had been reset to factory settings in May
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`2018 to correct a technical issue with the receipt of emails on that phone. Id.
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`B. Measures to Preserve and Recover Mr. Griswold’s ESI.
`EPA took reasonable and proactive steps to preserve Mr. Griswold’s ESI. Mr. Griswold’s
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`Gold King files were subject to a litigation hold by August 11, 2015. Ex. 22 at ¶ 2. Upon Mr.
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`Griswold’s retirement in October 2018, EPA made focused efforts to ensure his materials were
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`preserved, including by having counsel speak with Mr. Griswold and verifying visually that Mr.
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`Griswold’s computer files were synced with his OneDrive account, a cloud storage system, for
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`preservation. Id. at ¶ 11. On September 24, 2019, EPA also created a backup copy of the
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`OneDrive. Id. at ¶ 12.
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`7
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`EPA discovered that some information from Mr. Griswold’s OneDrive was missing in
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`August 2020. On February 4, 2020, EPA’s discovery support staff identified two Gold King
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`related subfolders, one in a “MyProjectDocuments” folder and another in a “Pictures” folder, in
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`the OneDrive for collection and production. Id. at ¶ 14. But when EPA attempted to collect these
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`materials in the summer of 2020, EPA found that the file paths no longer worked. When EPA’s
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`discovery support staff attempted to access the OneDrive on August 13, 2020, EPA learned that
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`the OneDrive was no longer available, and the only ESI left was from the backup copy. Id. at ¶
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`17. The backup copy contained 192 items from the “Pictures” folder, some of which are related
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`to the Gold King Mine, but the Gold King subfolder within the “Pictures” folder was missing. Id.
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`The backup did not contain any items in the “MyProjectDocuments” folder. Id.
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`EPA performed an exhaustive search for the missing OneDrive folders. During this
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`effort, EPA collected five devices that potentially contained a copy of the OneDrive: (1) the
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`laptop assigned to Mr. Griswold, (2) a USB drive found near Mr. Griswold’s laptop, (3) two
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`laptops assigned to an EPA IT contractor, and (4) a hard drive assigned to the same contractor.
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`Id. at ¶ 21. EPA also searched its network drives and records management system, and EPA
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`contacted Microsoft to determine if information could be recovered from its server. Id. Besides
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`the 192 items in the “Pictures” folder from the OneDrive backup, no ESI was recovered. EPA’s
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`investigation was unable to determine why the backup copy was incomplete. Ex. 22 at ¶ 20.
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`C. The Federal Parties Timely Disclosed the Potential Loss of ESI.
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`On October 23, 2020, the Federal Parties informed all parties of the inability to extract
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`some ESI from Mr. Griswold’s iPhone and the potential loss of ESI from Messrs. Griswold’s and
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`Way’s iPads and the OneDrive folders. Doc. 1179-4 at 2-3. The Federal Parties disclosed these
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`issues at this time because the attempts to unlock the second layer of encryption on Mr.
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`8
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`Griswold’s iPhone and the password on Mr. Way’s iPad were increasingly unlikely to succeed,
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`although the efforts continued until November 2, 2020. Ex. 25 at ¶¶ 6, 15. EPA also exhausted
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`its efforts to recover information from Mr. Griswold’s OneDrive around the same time. Ex. 22 at
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`¶ 18. Thus the timing of the disclosure was not part of a “pattern of concealment,” Doc. 1179 at
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`23; rather, the Federal Parties made the disclosure upon completing due diligence.
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`The timing of the disclosure gave other parties ample opportunity to investigate. As the
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`Sovereign Plaintiffs admit, two months of fact discovery remained, and the depositions of
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`Messrs. Griswold and Way had not been taken. Doc. 1179 at 23. Because of the timely
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`disclosure, the Sovereign Plaintiffs were able to ask Messrs. Griswold and Way about their ESI
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`after the Federal Parties agreed to extra time for their depositions. The Federal Parties also
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`agreed to provide a Rule 30(b)(6) witness to testify about EPA’s preservation efforts.
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`Critically, as stated in its October 23, 2020, letter, while the Federal Parties were candidly
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`disclosing difficulties that arose during the collection of the OSCs’ mobile devices and Mr.
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`Griswold’s OneDrive, the Federal Parties were not aware that any unique ESI had been lost.
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`Doc. 1179-4 at 2-3. ESI on Mr. Griswold’s iPhone could not be extracted, but information on the
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`phone could be viewed, and the phone was available for inspection under Rule 34(a). Id. at 2.
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`Information prior to April 2016 could not be viewed, id., but EPA implemented a diligent text
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`preservation process, and the Federal Parties had no reason to believe relevant texts prior to April
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`2016 had been lost. Mr. Way’s iPhone could not be accessed, but the digital copy of his iPhone
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`was accessible and produced. There was no reason at the time to believe that Mr. Way’s texts
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`were not preserved by EPA’s text preservation process or by the digital copy of Mr. Way’s
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`iPhone. Further, as noted, the Federal Parties have no knowledge of the loss of any unique ESI
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`from the two OSCs’ iPads, given what the OSCs had told counsel regarding their iPad use. Ex.
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`9
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`23 ¶¶ 15, 16. Finally, regarding Mr. Griswold’s OneDrive folders, his photos of the mine had
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`been produced from another source, and the documents Mr. Griswold had for the Gold King
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`Mine were likely duplicative of what the Federal Parties had produced from Mr. Way’s ESI
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`collection. Doc. 1179 at 3-4.
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`The Federal Parties first learned that ESI was definitively lost—and then only for Messrs.
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`Griswold’s and Way’s iPhone text messages—in 2021. First, on January 6, 2021, while
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`preparing EPA’s Rule 30(b)(6) witness on ESI, the Federal Parties learned that Mr. Griswold’s
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`iPhone could no longer be viewed; the iPhone now prevents any operations unless airplane mode
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`is turned off. Ex. 25 at ¶ 7. Still, the Federal Parties were unaware of any relevant texts that Mr.
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`Griswold did not save during EPA’s text preservation process until the Federal Parties obtained
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`the Verizon text message details in preparing a response to the Sovereign Plaintiffs’ motion. See
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`Ex. 23 at ¶ 21. Second, on February 17, 2021, the Federal Parties also learned that ESI had been
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`lost from Mr. Way’s iPhone (despite production of a digital copy) when the Sovereign Plaintiffs
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`introduced a text chain between Environmental Restoration’s (“ER”) project manager and Mr.
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`Way at a deposition. Ex. 21; Doc. 1179-12. That text chain includes texts from Mr. Way in July
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`and August 2015, Doc. 1179-12, but the backup of Mr. Way’s iPhone only contained texts from
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`October 20, 2015, onward, Doc. 1179 at 6.
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`II. The Federal Parties Have Produced Much of the Missing ESI from Other Sources,
`and the Loss of Unique and Material ESI Is Highly Unlikely.
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`The Federal Parties expended considerable effort identifying substitute sources for the
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`ESI that may have been lost. As a result of these efforts, the Federal Parties have determined that
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`much of the ESI that was thought to be missing has likely been produced from other sources.
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`Although some text messages from the OSCs are missing and have not been identified in
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 15 of 34
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`productions, these texts were likely immaterial, and the Federal Parties’ production of
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`contemporaneous statements from the OSCs’ emails, investigations into the Gold King Mine
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`release, and EPA’s core files for the mine more than make up for this limited loss of ESI.
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`A. Almost All ESI from Messrs. Griswold’s and Way’s Mobile Devices Has Been
`Produced and Any Lost Text Messages Are Unlikely to Be Material.
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`Contrary to the Sovereign Plaintiffs’ assertions, the facts show that much of the ESI from
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`Messrs. Griswold’s and Way’s iPhones and iPads has been produced from other sources:
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`1. Mr. Way’s iPhone: The Federal Parties produced ESI from a digital copy of Mr. Way’s
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`iPhone. Doc. 1179-24. Ex. 22 at ¶ 6. Although the copy does not include Mr. Way’s texts
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`prior to October 20, 2015, Doc. 1179 at 6, Mr. Way’s texts with ER’s project manager
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`have been produced by ER, and further efforts could be made to identify texts with other
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`persons. Ex. 23 at ¶ 13.2 Indeed, the Federal Parties have determined—using service
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`provider information—that more than half of Mr. Way’s texts (150 of 297) in July 2015
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`were with ER or Weston Solutions. Id. at ¶ 28. Similarly, more than half of Mr. Way’s
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`texts (155 of 297) in August 2015 were with ER, Weston Solutions, or federal employees
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`from EPA, the U.S. Coast Guard, and the Bureau of Land Management. Id. at ¶ 29. The
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`latter texts with federal employees were likely related to the response to the Gold King
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`Mine release, which are not relevant to the issue of negligence, and the Sovereign
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`Plaintiffs agreed need not be preserved. See Doc. 144 at ¶ B.7.g.
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`2. Mr. Griswold’s iPhone: The Federal Parties extracted and produced all relevant photos
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`from Mr. Griswold’s iPhone. Ex. 23 at ¶ 11. Although the remaining ESI could not be
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`2 In this response, the Federal Parties identify numerous documents that show ESI has not been
`lost or that substitutes exist. To avoid inundating the Court, the Federal Parties identify the
`documents in a declaration by Bates number. The documents can be provided upon request.
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`11
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 16 of 34
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`extracted from the iPhone, the call log data has been obtained from the service provider,
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`and some texts have been produced, including eight that Mr. Griswold saved as emails
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`and others produced by ER involving Mr. Griswold. Id. at ¶¶ 12-13, 23. Moreover, Mr.
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`Griswold did not use texts frequently; in the entire month of July 2015, he had only one
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`text. Id. at Attachment A. In the month of August 2015, Mr. Griswold did not have any
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`texts until one on August 5, 2015, and then no further texts until August 7, 2015. Id.
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`3. Mr. Way’s iPad: The presence of relevant and unique ESI on Mr. Way’s iPad is highly
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`unlikely. EPA acquired the iPad in July 2015, one month before the release. Ex. 7 at
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`128:4-9. Mr. Way informed counsel that he used the iPad only for emails, which have
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`been produced. Ex. 23 at ¶ 15; Ex. 8 at 349:20—351:7. The iPad did not send or receive
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`texts. Ex. 23 at ¶ 22.
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`4. Mr. Griswold’s iPad: The presence of relevant and unique ESI on Mr. Griswold’s iPad is
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`extremely unlikely. EPA acquired the iPad in July 2015. Ex. 7 at 128:4-9. Mr. Griswold
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`“didn’t know how to save” documents on the iPad and instead wrote emails to himself as
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`memos. Ex. 9 at 508:9-18. Those emails have been produced. Ex. 23 at ¶ 9. Mr. Griswold
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`used the iPad to photograph the Gold King Mine after the release and saved the photos to
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`his computer. Ex. 9 at 298:15-299:24. The Federal Parties have produced photos from the
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`EPA network folder “Gold King Mine Documentation\Pictures\ Hays – Gold King Mine”
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`that are likely these photos; the folder was created on August 9, 2015, and held 29 photos
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`dated August 7, 2015. Ex. 23 at ¶ 16. The iPad did not send or receive texts. Id. at ¶ 22.
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`The only ESI from the mobile devices that does not appear to have been entirely available
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`from another source are the text messages on the iPhones, but the existence of material and
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`contemporaneous texts is unlikely because there is no cell phone reception at the Gold King
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`Case 1:18-cv-00744-WJ-KK Document 334 Filed 06/01/21 Page 17 of 34
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`Mine. Ex. 9 at 490:17-18. Further, service provider information from Verizon shows there were
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`no texts between the OSCs until August 8, 2015, three days after the release. Ex. 23 at ¶ 25.
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`Using the same service provider information, the Federal Parties located all but two texts
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`between Me