Free Order on Motion for Discovery - District Court of Federal Claims - federal

Case 1:98-cv-00168-FMA

Document 247

Filed 02/28/2005

Page 1 of 2

In The United States Court of Federal Claims
No. 98-168C (Filed: February 28, 2005) __________ NORTH STAR ALASKA HOUSING CORPORATION, Plaintiff, v. THE UNITED STATES, Defendant. _________ ORDER __________ On August 19, 2004, plaintiff filed an emergency motion to stop the destruction of documents. On August 20, 2004, the court ordered defendant to respond to plaintiff's motion. On August 25, 2004, defendant filed a response to plaintiff's emergency motion, and on August 27, 2004, plaintiff filed a reply to that response. At the oral argument held on September 15, 2004, on plaintiff's motion for summary judgment, plaintiff indicated its desire to hold an evidentiary hearing to resolve the issues raised in its motion. On September 22, 2004, and January 4, 2005, the court filed orders establishing the procedures for the evidentiary hearing, and on January 6, 2005, the evidentiary hearing was held with several witnesses appearing in person and others via video-conference.1 Following the receipt of testimonial and documentary evidence, the court denied plaintiff's motion from the bench, finding that plaintiff had neither established that any destruction of documents relevant to this case had occurred, nor, correspondingly, that there was any real risk that such destruction would occur in the future. Plaintiff's emergency motion is, in effect, a motion for a document preservation order under the court's inherent authority to prevent the destruction of evidence and its specific authority, under RCFC 16( c)(6), (12), and (16), to control the discovery process. This court has addressed the requirements for the issuance of such an order in Pueblo of Laguna v. United States, 60 Fed. Cl. 133 (2001), in which it concluded that a party "seeking a preservation order

The hearing was delayed owing to the illness of defendant's original counsel in this matter, which resulted in the case being assigned to another attorney.

1

Case 1:98-cv-00168-FMA

Document 247

Filed 02/28/2005

Page 2 of 2

[must] demonstrate that it is necessary and not unduly burdensome." Pueblo of Laguna, 60 Fed. Cl. at 138. To demonstrate necessity, the movant "must show that absent a court order, there is significant risk relevant evidence will be lost or destroyed." Id. That showing, in turn, is "often met by demonstrating that the opposing party lost or destroyed evidence in the past or has inadequate retention measures in place." Id. At the hearing, one of plaintiff's employees, Ms. Debra Reese, testified that at about 4:30 p.m. on August 17, 2004, she witnessed "approximately three people" unfamiliar to her standing in an office on Fort Wainwright, Alaska, one of whom was placing documents in a shredder. Nonetheless, she indicated that another individual in the room, an Army employee with whom she worked regularly, invited her into the room to discuss a personal matter. The government called several witnesses who testified that they were present in that office at 4:30 p.m. on August 17, and that no shredding occurred. All these witnesses agreed that if a shredder had been in use, those in the room would certainly have been aware of it. Notably, on the critical points, the testimony of these government witnesses matched perfectly even though, by virtue of invocation of Rule 615 of the Federal Rules Evidence, most of them had not heard each other testify. Further, Ms. Reese declined to question the integrity of at least two of the government witnesses ­ those with whom she works frequently and who certainly would have been aware of the shredding had it been occurring literally a few feet away from where they sat or stood. Nor could Ms. Reese explain why, if shredding of evidence was occurring, she was invited into the room where the shredding was allegedly taking place. While the court is left to wonder at these conflicting and irreconcilable accounts of the events in question, it ultimately is left with the conclusion that the alleged shredding did not occur. Moreover, plaintiff has provided absolutely no evidence as to the nature of the documents Ms. Reese allegedly saw being shred and has not suggested, let alone shown, that any particular documents relevant to this case appear to be missing. Moreover, the testimony of several government witnesses made clear that defendant has acted diligently to ensure that documents related to this litigation are retained. Accordingly, plaintiff has failed to demonstrate that a document protection order is "necessary" in the relevant sense that absent such an order, "there is significant risk relevant evidence will be lost or destroyed." Pueblo of Laguna, 60 Fed. Cl. at 138. Plaintiff's motion is, therefore, DENIED. While an issue remains as to whether costs and attorney's fees should be imposed upon plaintiff, that issue will be addressed in a separate order. IT IS SO ORDERED.

s/ Francis M. Allegra Francis M. Allegra Judge

-2-