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Case Blurb: Asher Assocs LLC; Role of Intent in Assessing Sanctions

Posted by rjbiii on July 12, 2009

Common sense suggests that a failure to produce or preserve relevant evidence may involve conduct that falls “along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality.”

In Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997), the Tenth Circuit held that “the bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction.” In the same decision, the Tenth Circuit further reasoned that no adverse inference should arise where the destruction of a document resulted from mere negligence, because only bad faith would support an “inference of consciousness of a weak case.” FN11.

FN11: “‘Bad faith’ is the antithesis of good faith and has been defined in the cases to be when a thing is done dishonestly and not merely negligently. It is also defined as that which imports a dishonest purpose and implies wrongdoing or some motive of self-interest.” Of course, in cases where an adverse inference instruction is neither requested nor appropriate, the Tenth Circuit has held that a finding of bad faith is not required to impose non-dispositive sanctions, such as excluding evidence.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *27-28 (D. Colo. May 12, 2009)(internal citations removed).

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Posted in 10th Circuit, Adverse Inference, Bad Faith, Case Blurbs, D. Colo., Data Retention Practices, Duty to Preserve, Exclusion of Evidence, Good Faith, Magistrate Judge Craig B. Schafer, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; Second Letter with an ‘Emphatic Tone’ Likely Triggered Duty to Preserve

Posted by rjbiii on July 12, 2009

Defendant cites my decision in Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 623 (D. Colo. 2007), as support for its assertion that Plaintiff’s correspondence in September 2006 was too vague to trigger a duty to preserve evidence. To the contrary, the facts in Cache La Poudre are completely distinguishable. In that case, plaintiff’s counsel sent the putative defendant successive letters over a nearly two-year period in which she reiterated her client’s desire to explore a negotiated resolution of the parties’ dispute. I concluded that the less-than-adamant tone of counsel’s letters, coupled with the lengthy passage of time, belied the contention that Cache La Poudre’s correspondence had triggered a duty to preserve evidence.

Here, the facts compel a different conclusion. Plaintiff’s letter of September 8, 2006, came quickly on the heels of the Warranty Claim letter sent on September 1, 2008. While the earlier letter had not specifically threatened litigation, the September 8 correspondence adopted a decidedly different and emphatic tone. Plaintiff’s outside counsel characterized the earlier letter as a “failed” attempt to resolve the dispute “without litigation.” Where Plaintiff’s September 1st letter referred to “expenditures” incurred by [Plaintiffs] in connection with [certain] Contracts, outside counsel now indicated that his client had been “significantly damaged,” provided [Defendants] with an “interim damage calculation,” and claimed that “damages continue to accrue.” The September 8th letter demanded an “immediate payment” and imposed a five-day deadline for making that payment. Outside counsel went so far as to identify the specific claims for relief that [Plaintiffs] would assert if it initiated “such legal or other action to enforce its rights.” Given the tenor of the September 8th letter, [Defendants] should have understood that future litigation was reasonably foreseeable and substantially “more than a possibility.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *24-25 (D. Colo. May 12, 2009)(internal citations removed)(emphases added).

Posted in 10th Circuit, Case Blurbs, D. Colo., Data Retention Practices, Demand Letter, Duty to Preserve, Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs; Court Expounds upon Duty to Preserve

Posted by rjbiii on July 12, 2009

In most cases, the duty to preserve evidence is triggered by the filing of a lawsuit. However, the obligation to preserve evidence may arise even earlier if a party has notice that future litigation is likely.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *23 (D. Colo. May 12, 2009).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs LLC; Exercise of the Court’s ‘Inherent Powers’ to Sanction Party for Spoliation (10th Cir)

Posted by rjbiii on July 12, 2009

Plaintiffs correctly note that the court has inherent power to impose sanctions for the destruction or loss of evidence. []A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.[]

In exercising its discretion to fashion an appropriate sanction, the court must consider the culpability of the responsible party and whether the evidence was relevant to prove an issue at trial.

First, the court must determine whether the missing [evidence] would be relevant to an issue at trial. If that question is answered in the negative, the court’s analysis stops there. If the missing evidence would be relevant, the court must then decide whether [Producing Party] was under an obligation to preserve the [evidence]. Finally, if such a duty existed, the court must consider what sanction, if any, is appropriate given the non-moving party’s degree of culpability, the degree of any prejudice to the moving party, and the purposes to be served by exercising the court’s power to sanction.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *16-18 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Data Retention Practices, Duty to Preserve, Inherent Power of Fed. Courts, Magistrate Judge Craig B. Schafer, Sanctions, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; A Definition of Spoliation

Posted by rjbiii on July 12, 2009

“Spoliation” has been defined as “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *16 (D. Colo. May 12, 2009)

Posted in 10th Circuit, Case Blurbs, D. Colo., Magistrate Judge Craig B. Schafer, Spoliation | Leave a Comment »

Case Blurb: Asher Assocs LLC; Reason for Existence of Duty to Preserve

Posted by rjbiii on July 12, 2009

To ensure that the discovery permitted by Rule 26(b)(1) does not become a futile exercise, putative litigants have a duty to preserve documents or materials that may be relevant to potential future litigation.

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15-16 (D. Colo. May 12, 2009)(citing Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003)).

Posted in 10th Circuit, Case Blurbs, D. Colo., Duty to Preserve, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Asher Assocs LLC, Purpose of Discovery Procedures

Posted by rjbiii on July 12, 2009

Discovery procedures set forth in the Federal Rules of Civil Procedure seek to further the interests of justice by minimizing surprise at trial and ensuring wide-ranging discovery of information. To that end, Rule 26(b) permits discovery “regarding any matter . . . that is relevant to the claim or defense of any party” or discovery of any information that “appears reasonably calculated to lead to the discovery of admissible evidence.”

Asher Assocs., LLC v. Baker Hughes Oilfield Operations, Inc., 2009 U.S. Dist. LEXIS 40136 at *15 (D. Colo. May 12, 2009)(internal citations removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery, FRCP 26(b), Magistrate Judge Craig B. Schafer | Leave a Comment »

Case Blurb: Cunningham; Court Discusses Requests for Admissions

Posted by rjbiii on August 13, 2008

Pursuant to Fed. R. Civ. P. 36, Plaintiff’s Motion requests that the Court determine the sufficiency of Defendant’s objections to the RFAs. Pursuant to Rule 36(a)(1)(A), “[a] party may serve upon any other party a written request to admit . . . the truth of any matters within the scope of Rule 26(b)(1) relating to: facts, the application of law to fact, or opinions about either; . . . .” The responding party may specifically admit, deny, or qualify an answer. Fed. R. Civ. P. 36(a)(4). Absent court permission to withdraw or amend, admissions are binding on a party in the pending action. Fed. R. Civ. P. 36(b). Furthermore, Rule 36 allows parties to object to a request for admission so long as the grounds for objection are stated. Fed. R. Civ. P. 36(a)(5). If an objection is justified, the party is not required to admit or deny the truth of the matter. See Fed. R. Civ. P. 36(a)(6).

The purpose of Rule 36 is to reduce trial time by facilitating proof with respect to issues that cannot be eliminated from the case and by narrowing the issues that must be proved at trial. See Fed. R. Civ. P. 36 Advisory Committee’s note. Essentially, requests for admission “expedite trials by establishing as true certain material facts of a case without the necessity of formal proof at trial.” Keen v. Detroit Diesel Allison, 569 F.2d 547, 554 (10th Cir. 1978 ). Because requests for admission establish the truth of the matter, they “are not to be treated as substitutes for discovery processes to uncover evidence, and that they may not be applied to controverted legal issues lying at the heart of the case.” Cal. v. The Jules Fribourg, 19 F.R.D. 432, 436 (N.D. Cal. 1955); see also Safeco Ins. Co. of Am. v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998 ) (quoting 8A Wright, Miller & Marcus, Federal Practice and Procedure § 2252 at 524-525 (2d ed. 1994) (Rule 36 “presupposes that the party proceeding under it knows the facts.”)).

As a general rule, parties should use requests for admission to elicit simple and direct answers. Herrera v. Scully, 143 F.R.D. 545, 549 (S.D.N.Y. 1992). “Compound, complex, and vague [requests for admission] are prone to . . . objection.” William W. Schwarzer et al., Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice, 5-6 (2d ed. 1994). For example, requests for admission that are overly broad or vague as to time or scope are properly objectionable. FTC v. Think All Publ’g L.L.C., 2008 U.S. Dist. LEXIS 18561, 2008 WL 687454, *4 (E.D. Tex. March 11, 2008 ) (unpublished decision). In addition, requests for admission relating to the truth of a legal conclusion are properly objectionable, even though Rule 36 permits the application of law to fact. Utley v. Wray, 2007 U.S. Dist. LEXIS 68413, 2007 WL 2703094, *3 (D. Kan. September 14, 2007) (citing Disability Rights Council v. Wash. Metro. Area, 234 F.R.D. 1, 3 (D.D.C. 2006)). Specifically, “requests for admissions of law which are related to the facts of the case are considered to be inappropriate.” Lakehead Pipe Line Co. V. Am. Home Assur. Co., 177 F.R.D. 454, 458 (D. Minn. 1997).

Cunningham v. Std. Fire Ins. Co., 2008 U.S. Dist. LEXIS 52518, 3-6 (D. Colo. May 29, 2008 ).

Posted in 10th Circuit, Case Blurbs, D. Colo., FRCP 36, FRCP 36(a), FRCP 36(b), Magistrate Judge Kristen L. Mix, Request for Admissions | Tagged: | Leave a Comment »

Case Blurb: Cunningham; Court Examines Motion Accusing Party of ‘Failing to Confer’

Posted by rjbiii on August 13, 2008

As a preliminary matter, counsel disagree on whether Plaintiff satisfied the duty to confer pursuant to D.C. Colo. L. Civ. R. 7.1(A). Plaintiff’s certification asserts that counsel made reasonable, good-faith efforts to resolve Defendant’s objections to the Requests for Admission (“RFA”) before filing the Motion with the Court. Pursuant to Local Rule 7.1(A), the Court will not consider a nondispositive motion unless the movant, prior to filing, has conferred or made reasonable, good-faith efforts to confer with opposing counsel to resolve the dispute. To confer means to “discuss, talk over, consult about,” or “to hold conference.” See Oxford English Dictionary (2d ed. 1989). Accordingly, the language of Local Rule 7.1(A) suggests that parties confer by “hold[ing] a conference, possibly through the exchange of correspondence but preferably through person-to-person telephone calls or face-to-face meetings, and [by] compar[ing] views and attempt[ing] to reach an agreement, including by compromise if appropriate.” Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003). If both parties have not discussed and compared views in an attempt to reach an agreement, the movant must at least make reasonable, good-faith efforts to do so. The Court judges the reasonableness of movant’s good-faith efforts by considering not only the sheer quantity of contacts, but also their quality. Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999) (holding that four phone calls and two letters did not satisfy the duty to make a reasonable, good-faith effort to confer).

On March 24, 2008, Plaintiff’s counsel mailed Defendant a single letter that requested that Defendant reconsider its objections to the RFAs. This letter did not threaten filing the Motion if Defendant failed to respond immediately. See id. Plaintiff offers no evidence of Defendant’s response to this letter, if any. Only seven days later, on March 31, 2008, Plaintiff filed the Motion. This is insufficient evidence of a good-faith attempt to confer pursuant to Local Rule 7.1(A). The Court notes that it would be permissible to deny the Motion on the basis of Plaintiff’s failure to confer pursuant to Local Rule 7.1(A). However, the Court declines to deny the Motion on that basis and will decide it on the merits. Counsel are warned that a failure to confer in the future will result in summary denial of any motion. Cunningham v. Std. Fire Ins. Co., 2008 U.S. Dist. LEXIS 52518, 1-3 (D. Colo. May 29, 2008 ) (internal citations to pleadings removed).

Posted in 10th Circuit, Case Blurbs, D. Colo., Good Faith, Magistrate Judge Kristen L. Mix, Meet and Confer | Tagged: | Leave a Comment »

Case Blurb: Cunningham; Relevancy, and Who has the Burden to Prove it

Posted by rjbiii on July 21, 2008

[P]ursuant to Fed.R.Civ.P. 26(b)(1), any discovery sought must be relevant. Relevancy is broadly construed, and a request for discovery should be considered if there is “any possibility” that the information sought may be relevant to the claim or defense of any party. See, e.g., Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D.Kan.2001). “When the discovery sought appears relevant, the party resisting the discovery has the burden to establish the lack of relevancy by demonstrating that the requested discovery (1) does not come within the scope of relevance as defined under Fed.R.Civ.P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure .” Simpson v. University of Colorado, 220 F.R.D. 354, 350 (D.Colo.2004) (citations omitted). Further, the objecting party cannot “sustain this burden with boilerplate claims that the requested discovery is oppressive, burdensome or harassing.” Id. (citation omitted). However, when a request for discovery is overly broad on its face or when relevancy is not readily apparent, the party seeking the discovery has the burden to show the relevancy of the request.

Cunningham v. Standard Fire Ins. Co., 2008 WL 2668301 (D. Colo. July 1, 2008 )

Posted in 10th Circuit, Case Blurbs, D. Colo., Discovery Requests, FRCP 26(b), Magistrate Judge Kristen L. Mix, Objections to Discovery Requests, Overly Broad Request, Relevance | Leave a Comment »