Free Order on Motion for Sanctions - Rule 37 - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

Document 278

Filed 05/26/2005

Page 1 of 2

In The United States Court of Federal Claims
No. 98-168C (Filed: May 26, 2005) ___________ NORTH STAR ALASKA HOUSING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. __________ ORDER __________ On April 28, 2005, plaintiff filed a motion for sanctions, other remedies, and a preservation order in response to alleged spoliation of documents by defendant. On May 16, 2005, defendant filed its response to plaintiff's motion. Plaintiff's motion alleges, inter alia, that government personnel continued to destroy documents and e-mails in the ordinary course throughout the early years of this litigation, and that defendant failed to instruct its employees to preserve litigation-related documents until the litigation was well under way­ in some cases, as many as six years after the filing of the initial complaint. Plaintiff also complains that defendant has failed to comply with the court's order of April 13, 2005, which directed defendant to respond, not later than April 22, 2005, to document production requests arising out of depositions conducted by plaintiff pursuant to the limited discovery ordered by the court in paragraph 3(iii) of its order dated September 3, 2004. Defendant retorts that plaintiff has failed to demonstrate that any spoliation has occurred, and that even if plaintiff could establish that relevant documents have been destroyed, it has produced no evidence indicating that such destruction prejudiced plaintiff's claims or occurred in bad faith. Based upon a review of the parties' submissions, plaintiff's motion for sanctions is hereby DENIED. The depositions from which plaintiff's document requests arise were, pursuant to the court's order of September 3, 2004, "strictly limited to two issues: (a) defendant's alleged `stockpiling' of units in the period from November 2001 through February 2002 and continuing; and (ii) [sic] decisions issued by the Contracting Officer on or about August 23, 2001, and October 30, 2001." Plaintiff's motion makes no reference to either of these issues, and certainly does not allege that any of the allegedly destroyed documents, the recovery of which it now seeks, were within the scope of permissible discovery. It therefore appears that plaintiff is engaging in discovery outside the scope provided for by order of this court. The court also notes that the plaintiff's claims regarding stockpiling of units and the two named contracting officer's decisions

Case 1:98-cv-00168-FMA

Document 278

Filed 05/26/2005

Page 2 of 2

were not added to plaintiff's complaint until April, 2002. Defendant could not reasonably have known that it had a duty to preserve documents relevant to those issues until the complaint was amended to include them; in the absence of such a duty, no sanctions are appropriate. See, e.g., Columbia First Bank, FSB v. United States, 54 Fed. Cl. 693, 702 (2002). To the extent, then, that plaintiff's motion deals with document destruction occurring before April of 2002, it necessarily fails. In any case, plaintiff has offered no evidence that any destruction of documents occurred in bad faith. A showing of bad faith is required for the imposition of Rule 37 sanctions in most federal courts, and appears to have been universally required by this court. See, e.g., Columbia First Bank, FSB v. United States, 58 Fed. Cl. 54, 55 (2003) ("a finding of bad faith is necessary for the spoliation doctrine to apply"). Finally, plaintiff's assertion that defendant failed to comply with the court's order of April 13, 2005, is incorrect. That order required merely that defendant "respond" to plaintiff's discovery requests on or before April 22, 2005. Defendant did in fact respond by that date, and plaintiff has not demonstrated that defendant's progress in providing the requested documents has been purposefully or unreasonably delayed. Accordingly, for the reasons set forth above, plaintiff's motion for sanctions is hereby DENIED. IT IS SO ORDERED.

s/ Francis M. Allegra Francis M. Allegra Judge