Free Reply to Response to Motion - District Court of Arizona - Arizona

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STRUCKMEYER & WILSON 910 E. Osborn Rd. Phoenix, AZ 85014 PHONE: (602) 248-9222 FAX: (602) 263-0464 Donald R. Wilson, 1239 [email protected] Garvey M. Biggers, 9932 [email protected] Thomas J. Cesta, 21453 [email protected] UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Palma Baca Urrutia; Patricia Urrutia-Baca; Luis Javier Urrutia-Baca; Elizabeth UrrutiaBaca; Javier Arturo Urrutia-Arrieta; and Gloria Estela Sandate, ) ) ) ) ) Plaintiffs, ) ) vs. ) ) Darrell Lee Ekdahl and Jane Doe Ekdahl, ) husband and wife; George Vanden Bossche ) and Karolyn Vanden Bossche, husband and ) wife; and Vandy's Transportation, Inc., a ) California corporation, ) ) Defendants. ) ____________________________________)

NO. CV-03-1990-PHX-PGR

DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO REOPEN DISCOVERY FOR THE PURPOSE OF DNA TESTING AND REQUEST ORDER COMPELLING PLAINTIFFS TO SUBMIT TO DNA TESTING

(Assigned to the Honorable Paul G. Rosenblatt)

Defendants, by and through counsel hereby reply to plaintiffs' Response on the subject of the need for DNA testing. There is good cause to reopen discovery to conduct DNA testing and to issue an order compelling plaintiffs to submit to DNA testing. In reviewing the relevant factors to whether discovery should be reopened, the court should find that good cause exists.

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I.

RELEVANT FACTS The relevant facts are as follows:

A.
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Plaintiffs have no competent way to rebut Dr. Zhang's medical findings and thus have manufactured new evidence with proposed testimony.

B.

Plaintiff's invention of casino chips and hundred dollar bills forces the defense and the court to obtain the most conclusive evidence from a scientific basis. (i.e. DNA). Plaintiff's efforts are nothing more than a thinly veiled attempt to get charred bodies in front of the jury. Without DNA testing it is plaintiff's family's

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testimony versus Dr. Zhang's medical opinions. C. DNA testing can be completed inexpensively, and as quickly as less than one (1) month, as long as the plaintiffs do not impede the process by delay in providing a sample. (See Exhibit A, Tom Cesta Affidavit Attached).

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D.

Plaintiffs in their portion of the Joint Pretrial now contend that shortly after the accident they visited the site and located casino chips from the Gila River Indian Gaming Casino. This claim was reported for the first time in the parties Joint Pretrial Statement filed on July 17, 2006. Plaintiffs have never told defendants this story before, nor have plaintiffs produced the casino chips.

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E.

Plaintiffs did not obtain surveillance video from Gila River Casino parking lot, and they did not obtain surveillance video from 7- Eleven where decedents fueled.

F.

Defendants' counsel contacted the 7- Eleven, and the Gila River Indian Gaming Casino. (See Tom Cesta Affidavit). The 7- Eleven is now under new management, but it continues to have the same security system and use the same

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tapes. Tapes are recycled every thirty (30) days. Furthermore, the Gila River Casino recycles their tapes every seven (7) days.
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G.

Meanwhile, as plaintiffs allowed the destruction of evidence, they were diligently writing to George Vanden Bossche to preserve evidence. (See Exhibit B).

II.
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ARGUMENT a. By Arguing Late Disclosure, Plaintiffs Misconstrue the Discovery Rules. There is No Late Disclosure, Because the Evidence Has Only Now Come Into Existence.

No late disclosure occurred because defendants timely disclosed the new evidence within days of its discovery. Under FRCP 26(e)(1) "[a] party is under a duty to supplement at appropriate intervals its disclosures under subdivision (a) if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other

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parties during the discovery process or in writing." Because there was no known need to do so, neither party had deposed or interviewed Dr. Zhang during the discovery period, so the "additional" or "corrective" information was not made known to either party during the discovery process.

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The fact that defendants interviewed Dr. Zhang during preparation for trial, and plaintiffs did not, does not give plaintiffs cause to cry foul. Nothing prevented plaintiffs from conducting an interview. Indeed, if defendants had waited, both parties would have been surprised by Dr. Zhang's testimony on the stand. It exalts form over function if information learned after discovery closed could be considered "late disclosed" because it

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was not produced even before it existed. It would also put all parties in the impossible position of eschewing trial preparation for fear that they would learn something. The affidavit is proof of what Dr. Zhang will say at trial. Defendants prepared for trial by meeting with Dr. Zhang and discussing his testimony. After the accident
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happened, plaintiffs told the investigators that Jose was driving. The body recovered from the driver's seat was labeled Jose. But, when faced with the evidence all at one time, based on scientific evaluation of the bodies, Dr. Zhang found that the circumstantial

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identifications are backwards. Javier was the body recovered from the driver's seat. Pursuant to Rule 26, defendants are obligated to present what they learn during trial preparation. Plaintiffs had a duty to disclose any relevant information on the subject of where the deceased were coming from and going to. Trials are about truth. Rule 26 is designed to eliminate "ambush." Defendants provided plaintiffs with Dr. Zhang's

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affidavit so that plaintiffs would also know the truth. This is where Plaintiffs draw the line. They would have the court keep truth from the jury. Plaintiffs are requesting that the court order Dr. Zhang to lie. Although defendants prefer to practice law by preparing for trial in advance, Dr.

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Zhang could have been asked to make the same side by side comparison on the witness stand. If this were done, not only would it come into evidence, but no one could claim late disclosure. The only difference here is that defendants learned what Dr. Zhang will say, and told the plaintiffs. The advance notice can not be considered a late disclosure. The only reason plaintiffs think defendants should ask the question on the stand instead

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of asking in advance is to tip the scales of the balancing test by making the unduly prejudicial photographs of charred remains more relevant. b. There is Good Cause to Order DNA Testing.

In Smith v. U.S., 834 Fed. 2d. 166, at 169 (Court of Appeals for the 10th Circuit Oklahoma) (1987), the court reviewed decisions by other courts to identify relevant

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factors of whether discovery should be reopened. The court stated that these include: 1) Whether trial is imminent; 2) Whether the request is opposed;
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3) Whether the non moving party would be prejudiced; 4) Whether the moving party was diligent in obtaining discovery within the guidelines established by the court; 5) The foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court; and 6) The likelihood that the discovery will lead to relevant evidence. (Citations Omitted) Defendants are confident that good cause has been shown. The likelihood of truthful evidence is the overriding concern. Defendants apply the factors as follows:

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1) Trial is not imminent, it is not set. It may be set imminently, but DNA testing can be completed in about one (1) month or less, unless obstructed by the plaintiffs, and will not interfere if the trial date is set accordingly. 2) The request is opposed, but by a party that has unclean hands in the disclosure and preservation of evidence. 3) There is no prejudice unless the truth is something that plaintiffs are fearful of encountering (see above). The only prejudice plaintiffs name occurred as a result of plaintiffs' lack of diligence. 4) There was no known need to obtain the testing previously. The need merely

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exists now because plaintiffs contest the only competent evidence of identity--Dr. Zhang's testimony. Furthermore, if plaintiffs had preserved the Gila River Casino Tapes or the 7-11 tapes, defendants could have learned earlier that Javier was driving. This debate only happened after discovery because plaintiffs spoliated the evidence. 5) Once obtained, there will be no further discovery needed as a result of the

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testing. The evidence will be highly relevant. Indeed, it will end the debate, streamline the testimony, and the trial. Because of plaintiff's concealment of the casino chips, "hundred dollar bills" information and the "coming from and going to" information in their possession, the court should allow an independent test to settle the debate.
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c.

Plaintiffs are Not Prejudiced Because Plaintiffs allowed the Tapes to be Destroyed Even Before Plaintiffs Filed Suit.

Likewise, plaintiffs cannot, with candor to the tribunal, claim prejudice. As
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shown in the facts stated above, the lack of videotape evidence for which plaintiffs claim prejudice, was actually destroyed because the plaintiffs failed to make any effort to preserve the tapes, at a time well before defendants were made aware of the existence. Defendants are prejudiced by plaintiff's failure to preserve evidence and failure to disclose facts and the existence of video data. The court should also be satisfied that

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prejudice to plaintiffs does not exist for another reason. Plaintiffs complain that they could have obtained the surveillance videotapes. But the tapes ceased to exist because plaintiffs spoliated them, as will be explained by the case law and argument below. 1. Plaintiffs Intentional Concealment of Facts, and Failure to Obtain the Surveillance Tapes IS Spoliation. Defendants allege spoliation. The body of law regarding spoliation is not yet well developed along the line that defendants urge, but there are cases that support a ruling in this regard. Moreover, policies behind spoliation favor this interpretation. Precedent is important, but jurisprudence grows strong when logic is also employed.

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Spoliation is "The intentional destruction, mutilation, alteration, or concealment of evidence, usu. a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible." Blacks Law Dictionary, (8th Ed. 2004). "Once spoliation has been established, the sanction chosen must achieve deterrence, burden the guilty party with the risk of an incorrect determination and attempt

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to place the prejudiced party in the evidentiary position it would have been in but for the spoilation." Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 287 (E.D.Va.,2001).
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2.

Factors Controlling the Decision to Apply the Presumption of Spoliation.

The Washington Court of Appeals indicated that two factors are controlling in the
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decision to apply the presumption "(1) the potential importance or relevance of the missing evidence; and (2) the culpability or fault of the adverse party." Henderson v. Tyrrell, 80 Wash.App. 592, 607, 910 P.2d 522, 532 (Wash.App. Div. 3,1996) (citing Sweet v. Sisters of Providence in Washington 895 P.2d 484, 491 (Alaska,1995) and also Baliotis v. McNeil, 870 F.Supp. 1285, 1289 (M.D.Pa.,1994) for the proposition that a

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balancing of these interests is required.) A. Importance of the Evidence.

In review of the actions of plaintiffs, the concealment until now that Jose and Javier may have taken a side trip to the Gila River Casino was an intentional failure to

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disclose relevant evidence, as was the failure to produce the casino chips. Defendants have been greatly prejudiced by this concealment and late disclosure because they have never had the opportunity to address with their experts the impact of the late night gambling on the attentiveness of the driver. Furthermore, the failure to obtain the surveillance videos from the casino and the convenience store prevented defendants from

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having the opportunity to learn while discovery was still open that Javier was driving. The fact that Javier was driving shows that both Javier and Jose bear fault for the accident. The missing evidence is thus highly important and relevant. B. Plaintiff's Fault for the Destruction.

The key question is thus the degree of blame that plaintiffs have for the
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destruction of the evidence. With the casino chips, this is an easy analysis. Plaintiffs claim to have encountered the chips at the scene of the accident. If so, then these chips
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were entirely in their control. Plaintiffs either failed to retain the chips, or disposed of them later without ever telling defendants of their existence (unless plaintiffs still have them and still have not produced them.) This intentional concealment and destruction of

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evidence shows that plaintiffs are extremely blameworthy for spoliation. With the videos, if the analysis is followed to its logical end, then the only reasonable conclusion is also that plaintiffs are to blame for the destruction of this evidence. It may be true that plaintiffs never had these in their possession before they were destroyed. The casino recycled the parking lot video in seven days, and the

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convenience store did so in 30 days. Nevertheless, what is most significant is that before the videos were destroyed, plaintiffs never made defendants aware of the possibility of relevant evidence, and plaintiffs made no effort to preserve these videos. "If a party cannot fulfill this duty to preserve because he does not own or control the evidence,

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he still has an obligation to give the opposing party notice of access to the evidence or of the possible destruction of the evidence if the party anticipates litigation involving that evidence." Silvestri v. General Motors Corp., 271 F.3d 583, 591 (C.A.4 (Md.),2001). Furthermore, "[p]eculiar knowledge or possession of evidence carries with it the duty of giving it out if one would avoid the imputation that its concealment naturally reflects."

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Southwest Cotton Co. v. Clements, 25 Ariz. 124, 130, 213 P. 1005, 1008 (Ariz.1923). When plaintiffs failed to obtain the videos for preservation, or even to inform defendants of the whereabouts of Jose and Javier, at a time that defendants could also have obtained the videos, plaintiffs did not fulfill their duty to preserve, and did not act with candor or professionalism.

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//

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Plaintiffs' argument that they did not know that defendants would allege that Javier was driving is without merit. The duty to preserve the evidence began before the lawsuit was filed. Kronisch v. United States, 150 F.3d 112, 126 (2d Cir.1998).

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3.

Public Policy IS in Accord with Imposing the Presumption

The case law supports defendants' position that plaintiffs are liable for spoliation not just for the casino chips, but also for the surveillance videos. The public policy behind spoliation likewise supports this finding. The presumption should be used to achieve deterrence, put the risk of an incorrect determination on the spoliator, and

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attempt to return the prejudiced party to the position he would occupy if the destruction had not occurred. Trigon Ins. Co. v. U.S., 204 F.R.D. 277, 287 (E.D.Va.,2001). In cases where comparative fault applies, plaintiffs have all of the facts. Plaintiffs should not be allowed to hide the facts until the proof is destroyed. To act as a deterrent,

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the court should find that plaintiffs willful concealment of relevant evidence is spoliation, especially because plaintiffs were the only party in the position to ensure preservation of the evidence at a time when there was an opportunity to do so. Plaintiffs should have to face the risk that the jury will conclude that the videos contained evidence that was harmful to plaintiffs. Defendants should not labor under the burden of lack of evidence

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when the lack was occasioned by plaintiffs' willful failure to preserve it. Thus, the court should impose the rebuttable presumption of spoliation against the plaintiffs. Plaintiffs diligently wrote to Vandy's to preserve many items of evidence. (Exhibit B). But plaintiffs ignored the surveillance tapes. Plaintiff's acts beg the question, "Why were you able to write to Mr. Vanden Bossche to preserve a list of

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documents, were you not able to request the 7-11 tapes?" 7-11 destroys tapes after 30 days. Gila River destroys tapes after 7 days. Well before the complaint was even filed,
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before defendants filed an Answer, and years before plaintiffs told defendants about the decedents' activities, the tapes ceased to exist because plaintiffs did not attempt to preserve them. Only plaintiffs were in the position to know of the decedents' activities.

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Only plaintiffs were in a position to preserve the tapes while they still existed. Furthermore, the inability to get the tapes is the only prejudice plaintiff's claim. Thus, while absolute prejudice exists to defendants, plaintiffs cannot show prejudice at all. c. To the Extent that Plaintiffs Bootstrap Rule 37(c) as a Reason to Preclude Dr. Zhang From Speaking the Truth and Thus Prevent DNA

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Testing, Plaintiffs' Argument is Duplicative of Their Motion in Limine. Defendants Incorporate Their Response by Reference, Rather Than Waste the Court's Time by Reiterating the Whole of It. Rule 37(c) was not violated. Defendants could not produce something that they

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did not possess. III. CONCLUSION Sanctions should be levied against plaintiffs for their willful withholding of information. No sanctions should be imposed against defendants. Plaintiffs failed to preserve

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evidence and are now asking the court to protect plaintiffs from their own bad faith. Defendants ask the court to sanction plaintiffs for spoliation of evidence, but are not seeking attorney's fees or costs at this time. Unless the court issues a gag order of some kind upon Dr. Zhang, his testimony is admissible. There was no "late" disclosure. Finally, the DNA testing should be ordered

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because there is good cause. If nothing else, it will put an end to the bickering. //
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RESPECTFULLY SUBMITTED this 9th day of August, 2006.

STRUCKMEYER AND WILSON

s/Garvey M. Biggers Donald R. Wilson Garvey M. Biggers Thomas J. Cesta Attorneys for Defendants Darrell Lee Ekdahl; Jane Doe Ekdahl; George Vanden Bossche; Karolyn Vanden Bossche; and Vandy's Transportation, Inc.

I hereby certify that on August 9, 2006, I electronically transmitted the foregoing document to the Clerks Office using the cats CM/ECF System for filing and transmittal of a notice of Electronic Filing to the following CM/ECF registrants Augustine B. Jimenez III. ORIGINAL of the foregoing filed. COPY of the foregoing hand-delivered this 9th day of August, 2006 to: The Honorable Paul G. Rosenblatt UNITED STATES DISTRICT COURT Sandra Day O'Connor US Courthouse 401 W. Washington St. Phoenix, AZ 85003

s/Garvey M. Biggers
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