Opinion
Civ. No. 98-2234 SECTION "N"
April 26, 2000
ORDER AND REASONS
Before the Court is plaintiffs William and Christian Anderson's Motion in Limine Seeking Adverse Presumption. For the following reasons, plaintiffs' Motion in Limine is DENIED.
BACKGROUND
This suit arises out of an accident aboard a spud barge located in navigable waters off the coast of Louisiana. Plaintiffs William and Christian Anderson filed a Complaint on July 29, 1998, seeking to recover for damages sustained by William Anderson on February 11, 1998. William Anderson was employed by PMI as a roustabout, and was injured during an exercise to move a spud barge when a crane used to lift and move the barge's spuds dropped a spud, causing the spud's keeper pin to dislodge and strike Anderson in the head. Originally, plaintiffs premised jurisdiction on diversity of citizenship and provisions of 33. U.S.C. § 905(b), naming as defendants Production Management Corporation and PMI, owners of the spud barge on which Anderson was injured, and Newman Crane Service, Inc. ("Newman"), the presumed owner of the crane involved in the accident. On August 20, 1998, plaintiffs filed an Amended Complaint, substituting Thigpen Construction Co., Inc. ("Thigpen") for defendant Newman after plaintiffs learned that Thigpen was the actual owner of the crane involved in Anderson's accident. In November, 1998, plaintiffs dismissed Thigpen because discovery failed to demonstrate liability on its part. Defendant PMI then filed a third-party complaint against Thigpen in August, 1999, under both Fed.R.Civ.P. 9(h) and 14(c), tendering Thigpen to plaintiffs. In its Answer, Thigpen brought a counterclaim against PMI. In March, 2000, plaintiffs filed a Supplemental and Amended Complaint, changing their jurisdictional allegations to premise jurisdiction on the Jones Act and in the alternative, on diversity of citizenship and provisions of 33 U.S.C. § 905 (b). Finally, in April, 2000, this Court was advised that PMI's third-party claims against Thigpen were resolved through settlement. The Court was also advised that plaintiffs released PMI's Rule 14(c) tender of Thigpen to plaintiffs. Before settlement of all third-party claims, however, Thigpen had filed a Motion in Limine Seeking Adverse Presumption. Plaintiff joined in this request on April 5, 2000, by submitting their own motion. Plaintiffs adopted and incorporated Thigpen's Motion in Limine. While this Court denied Thigpen's Motion as moot upon learning of the parties' settlement of all third-party claims, plaintiffs' Motion in Limine remains before the Court.
This exercise took place while PMI was performing a job for Callon Petroleum Company and/or Callon Offshore, Inc. (the Callon Project").
LAW AND ANALYSIS
Plaintiffs move this Court for an Order sanctioning defendant PMI for spoliation of evidence on the ground that defendant's failure to preserve and hence produce requested job and work records prepared and maintained by PMI in connection with the Callon Project and this casualty prevents plaintiffs and the trier of fact from ascertaining certain factual truths at the heart of this dispute. Plaintiffs claim that PMI maintained control over certain records contained in a job file on the work performed in furtherance of the Callon Project, which file may have included documentation regarding inspections, work records, logs, invoices, daily crane safety checklists, time sheets, rental records, records in investigation of plaintiffs injury and accident, and other general records pertaining to the project. Plaintiffs recognize that PMI maintains that the file in question was destroyed by a PMI employee after the Callon Project Manager, Charles Mistich, left the company, but while the current lawsuit was pending. Plaintiffs argue that PMI's failure to preserve the file gives rise to a presumption that the evidence would have been adverse to PMI's position. In sum, plaintiffs seek an adverse inference instruction to the jury that it may infer from the destruction of or failure to produce certain documents that they would have been detrimental to PMI's case.
At the time this Motion in Limine was filed, PMI alleged that Thigpen leased a defective crane. Deposition testimony had revealed that daily crane safety inspection reports were provided to the crane operators to be used in connection with the crane's inspection. Plaintiffs continue to argue that the crane's brakes may not have been adjusted properly. Plaintiffs now assert that because it is undisputed that the work records in question were last in PMI's possession and PMI has failed to produce such records, the Court should draw an adverse inference presumption that, were this evidence available, it would be unfavorable to PMI's position. Plaintiffs rely on the deposition testimony of Mistich, in which he states that PMI had a file on the Callon project that included documentation regarding the crane rental, daily work records, invoices, time sheets, and "[a]nything and everything pertaining to that job."
In response, PMI asserts that the file in question was lost inadvertently, and that there was no intent on the part of anyone to destroy evidence or to conceal the fact that the file in question no longer exists. PMI also points out that there was no outstanding discovery due to plaintiffs at the time of loss. Further, PMI's counsel asserts that he has no knowledge of relevant documentation that was "in or likely to have been in" the file at issue, relying on deposition testimony of Karl Olson, PMI crane operator, in which Olson states that he never turned anything over to his boss that indicated there was something wrong with the crane. Olson stated that he kept a daily record inspection book, but that he did not have to turn in a checklist each day. Thus, PMI's counsel reasons that no crane operator records would have been found in the file, as none were "turned in." PMI also argues that the case law of this circuit requires a finding of bad faith or bad conduct associated with the loss of evidence in order to permit an adverse inference to be drawn. PMI argues that there is no evidence of bad faith before the Court, and future argues that the question of whether PMI knew of "house cleaning" that may have led to the file's loss and whether such knowledge is of any relevant or probative value should be evaluated when such evidence is sought to be offered at trial.
PMI submits affidavit testimony of PMI's Risk Manager, Michael Seymour, who states that when he discovered that the Callon Project file was missing, during preparation to respond to discovery in 1999, he undertook an investigation and learned that the file in question had been moved from PMI's office in Venice to its office in Harvey around March, 1999. He understands that the files were transferred due to billing disputes. Seymour further states that after Mistich was released from PMI's employment in July, 1999, PMI hired a new General Manager, Robert Meith, in August, 1999, and that Meith, on his own initiative, ordered a "house cleaning" of PMI's Harvey offices, believing all papers to be old paperwork that was no longer needed. Seymour further states that Meith had no knowledge of Anderson's injury or the pending litigation.
It is well established that a court may use the sanction of an adverse evidentiary inference when a party suppresses evidence through spoliation. See Maria A. Losavio, Comment, Synthesis of Louisiana Law on Spoliation of Evidence, 58 La. L.R. 837, 862 (1998). Spoliation includes the loss, destruction, concealment or material alteration of evidence. See Black's Law Dictionary 1409 (7th ed. 1999); see also Karen Wells Roby Pamela W. Carter,Spoliation: The Case of the Missing Evidence, 47 La. B.J. 222, 222 (1999). The underlying principle is best stated as follows: "[w]hen the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the facts of the document's nonproduction or destruction as evidence that the party which has prevented production did so out of the well-founded fear that the contents would harm him." Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 217 (1st Cir. 1982). While the circuits are split on the issue of whether a showing of bad faith or willfulness is required, the Fifth Circuit holds that in order to permit the fact-finder to draw an inference adverse to the destroying party, there must be a showing of bad faith or bad conduct. See Caparotta v. Entergy Corp., 168 F.3d 754, 756-57 (5th Cir. 1999) (stating that "an adverse inference drawn from the destruction of records is predicated on bad conduct by the defendant."); Vick v. Texas Employment Comm'n, 514 F.2d 734 (5th Cir. 1975). See also Self v. Illinois Central R.R., 1999 WL 1212177, at *2-3 (E.D. La. Dec. 15, 1999) (citing Vick for the proposition that the Fifth Circuit requires a finding of bad faith in order to draw an adverse evidentiary inference for spoliation); In re Hopson Marine Transp., Inc., 168 F.R.D. 560, 567 (E.D. La. 1996) (holding adverse inference requires a wrongful denial of discovery necessary to establish a fact in dispute); Tieken v. Clearing Niagara. Inc., 1997 WL 88180, at *3 (N.D. Miss, Jan. 7; 1997) (holding that bad faith is required to apply the adverse inference rule); Williams v. CSX Transp., Inc., 925 F. Supp. 447, 452 (S.D. Miss. 1996) (stating that for a party to draw an adverse inference, "destruction must be such as to indicate `bad conduct of the defendant'"), aff'd, 139 F.3d 899 (5th Cir. 1998);Wright v. Illinois Central R.R., 868 F. Supp. 183, 188 (S.D. Miss. 1994) (holding adverse inference may be drawn "only where documents have been destroyed in bad faith"); Kammerer Sewerage Water Bd. of New Orleans, 633 So.2d 1357, 1358 (La.Ct.App. 4th Cir. 1994) (holding that adverse inference not applicable because "there was no intentional destruction of evidence for the purpose of depriving the plaintiff of its use."). See also Pressey v. Patterson, 898 F.2d 1018, 1022 (5th Cir. 1990) (considering whether decision to destroy evidence to prevent use of certain information was a rational act in order to determine whether destruction was in bad faith or willful). The Fifth Circuit reasons:
[The argument for an adverse inference where records are destroyed under routine procedures without bad faith] is unpersuasive. The adverse inference to be drawn from destruction of records is predicted on bad conduct of the defendant. Moreover, the circumstances of the act must man West bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.Vick, 514 F.2d at 737 (emphasis added) (quotations and citations omitted). In addition, the destroying party must have been on notice of the relevance of the evidence to potential liability, and thus subject to a duty to preserve such evidence. See Nation-Wide Check, 692 F.2d at 218. In other words, the Court's inquiry is not limited solely to an examination of whether the evidence was destroyed, but rather the crucial inquiry requires consideration of the reason for destruction.
It is important to note, however, that a court may allow the fact of inadvertent destruction of evidence to be presented to the jury even when a finding of bad faith is not supported by the facts of a case. See Caparotta, 168 F.3d at 756-57. The Fifth Circuit states expressly that Vick "does not apply to the issue of whether the district court could nonetheless admit the fact of the destruction of documents for the jury to weigh with the other evidence in the case because such evidence was relevant." Id. at 757. Thus, where evidence of the fact of destruction is relevant with respect to the credibility and reliability of the destroying party, such evidence is properly within the province of the fact-finder for consideration. See id. at 758.
This Court finds that the evidence before it lacks a showing of bad conduct on behalf of the defendant, and thus the Court denies plaintiffs' request for an adverse inference. The file in question is missing due to a "house cleaning" ordered by an employee on PMI who lacked notice of the relevance of the evidence in question to potential liability. PMI supports these facts with affidavit testimony, although it is a curiosity as to why PMI did not submit an affidavit by Meith, himself. While PMI in no way asserts that such cleaning was a routine activity, nonetheless, plaintiffs produce no evidence that Meith was aware of the pending lawsuit when he destroyed the file at issue or that he acted in bad faith. Further, the Court does not have evidence of violation of a company-wide document retention policy; nor do the parties reference any state or federal regulations imposing obligations of which PMI is in breach. The evidence before the Court indicates that the file in question was destroyed after August, 1999, approximately one year after this litigation was commenced, but the Court is not advised whether this was before or after discovery requests were made. Although the Court finds PMI's conduct troublesome, as it violates the obligation to maintain records that are reasonably perceived by a corporation as potentially relevant, it cannot make a finding of intentional conduct on PMI's part in the destruction of evidence, and thus the sanction of an adverse evidentiary inference is unwarranted.
Further, there must be some showing that the content of the evidence in question bears some nexus to the inference sought. Here, there remains a question of fact as to whether the file in dispute in fact contained daily inspection logs or safety checklists, as Olson's testimony indicates that no such logs were turned in to a supervisor while he was the crane's operator. Thus, there is no significant evidence that the file would have shown that the crane's brakes were not adjusted properly by PMI. At most, the records may have revealed ambiguous information. The Court is not convinced that the file was reasonably likely to contain information from which a fact in dispute could be proven. Still, because evidence of the fact of destruction is relevant with respect to PMI's credibility and reliability, plaintiffs will have the opportunity to present the fact of inadvertent destruction of the Callon Project file to the jury even in the absence of a finding of bad faith or bad conduct. Accordingly,
IT IS ORDERED that plaintiffs William and Christian Anderson's Motion in Limine Seeking Adverse Presumption is DENIED.
New Orleans, Louisiana, this day of April, 2000.