Opinion
Civil No. 2:01-CV-220 TC
May 1, 2003
ORDER GRANTING MOTION TO COMPEL
(On Order of Reference By Judge Tena Campbell)
The Court has read Plaintiff Ronald Kasai's "Motion to Compel and for Default Judgment or for an Evidentiary Inference Against Defendant PK Trucking for Spoliation of Evidence," defendant PK Trucking's memorandum in opposition thereto and Plaintiff's reply memorandum. At the hearing on this motion on April 9, 2003, the Court also received a letter from defendants's counsel to Dana Thompson requesting her to locate and forward documents which would be responsive to Plaintiff's discovery requests, and an affidavit from Dana Thompson regarding the items which she found in the trailer in Woodland, California.
Counsel submitted a stipulated form of order, which is lodged in the file, and the Court has entered this order, based on that stipulated form, with modifications by the Court to reflect its disposition as stated April 9, 2003.
The Court makes the following findings of fact:
Findings of Fact
1. This action arises from a motor vehicle accident which occurred in May, 1999. Plaintiff alleges injuries suffered when Mr. Akhtar, driving for PK Trucking, Inc., collided with Plaintiff.
2. On January 11, 2000, counsel for Plaintiff sent a letter to Frank Radoslovich, then counsel for PK Trucking, Inc., requesting Mr. Akhtar's personnel file and driving logs, and threatening suit if necessary. This alerted Defendant PK Trucking, Inc., to the possibility of suit. Suit was filed March 30, 2001.
3. On September 18, 2001, Plaintiff served his First Set of Request for Production of Documents to Defendant PK Trucking and to Defendant Akhtar seeking information relating to Mr. Akhtar's employment at PK Trucking as well as company policies and procedures relating to hiring, testing, and background checks of potential employees.
4. After receiving an extension of time, Defendants responded to Plaintiff's September 18, 2001 discovery requests on November 16, 2001, and stated that they were in the process of obtaining documents which were responsive to the requests and would supplement responses when information became available.
5. On January 23, 2002, defense counsel wrote Dana Thompson of St. Paul Fire Marine Insurance requesting that Ms. Thompson review documents which PK Trucking had stored in a trailer in Woodland, California and that she send documents that were responsive to Plaintiff's September 18, 2001 discovery requests to defense counsel's offices in Salt Lake City, Utah. The letter fairly summarized the discovery requests. The letter clearly reflects defense counsels' knowledge of the trailer.
6. In a letter dated February 8, 2002, Ms. Thompson wrote to defense counsel and explained that she had enclosed all documents relating to Naveed Akhtar, including every piece of paper with Mr. Akhtar's name on it, materials related to the truck involved in the accident, and documents related to any lawsuits which she found in the files. This response is not completely responsive to the requests made of her, and is not fully responsive to the discovery requests of September 2001.
7. On September 3, 2002, Defendants supplemented their responses to Plaintiff's September 18, 2001 discovery requests by providing documents obtained from Ms. Thompson. There is no record that Defendants disclosed the existence of the trailer full of documents at that time nor did Defendants offer inspection of the documents in the trailer. The court has not reviewed the documents produced in September 2002 to determine if they are responsive to the discovery requests made a year earlier.
8. On September 11, 2002, Plaintiff served Defendant PK Trucking with his First Set of Interrogatories and Second Set of Requests for Production of Documents requesting documents relating to the financing, assets, alleged dissolution, minutes and other company information regarding PK Trucking and Naveed Mustaf Akhtar's employment history.
9. On January 8, 2003, after receiving an extension of time, defense counsel responded to Plaintiff's September 11, 2002 discovery requests. All answers to all the requests for production of documents uniformly stated that, "[d]ue to the dissolution of PK Trucking, Inc., counsel for Defendant has been unable to locate documents that would be responsive" to Plaintiff's requests, and that "if such documents become available, this response will be immediately supplemented."
10. Prior to filing the January, 2003 responses to Plaintiff's September 2002 discovery requests, defense counsel did not request that Dana Thompson or any other individual return to the storage trailer to search for documents which would have been specifically responsive to Plaintiff's September 11, 2002 discovery requests.
11. Defendant PK Trucking's January 2003 responses to Plaintiff's September 11, 2002 discovery requests were inadequate as they were prepared without any search for documents requested that were in the trailer.
12. The January 2003 responses are also incomplete and misleading in that there are apparently many documents which are responsive to the September 2002 discovery, as these documents were presented at the hearing on this motion.
13. The January 2003 responses are also incomplete and misleading in that they do not disclose that there was a storage trailer located in Woodland, California which contained 65 boxes and 40 file drawers containing PK Trucking documents.
14. There is no documentary evidence that the trailer document repository was disclosed to Plaintiffs' counsel until March of 2003, after the filing of this motion to compel.
15. Counsel for Defendant did in fact visit and review the contents of the trailer in March 2003, after the filing of this motion to compel, and brought a box of possibly responsive documents to Salt Lake City. At the time of the hearing, these documents had not been provided to Plaintiff's counsel.
16. Defense counsel stated he spent approximately four hours searching the trailer and that he did not know if he had obtained all documents responsive to Plaintiff's' discovery requests. Given the size of the trailer and number of files, defense counsel's efforts to procure responsive documents during the March 2003 trailer search were inadequate to get all of the responsive documents out of the trailer.
17. In an affidavit dated February 9, 2003, filed April 10, 2003, as Docket No. 49, Ms. Thompson described her efforts in 2002 to locate documents as including approximately twelve (12) hours spent searching through and reviewing documents. In her affidavit, Ms. Thompson claimed that she sent to defense counsel all documents which she had been able to locate which were in any way responsive to the discovery requests, though her cover letter of February 8, 2002, clearly does not say this.
Based on the foregoing Findings of Fact, the Court now makes the following Conclusions of Law:
Conclusions of Law
18. Defendant PK Trucking, Inc., has had a duty to preserve evidence in this case since the date of the accident, and certainly since the January 2000 letter from counsel.
19. Parties have a duty to disclose, without a discovery request, "a copy of, or a description by category and location of, all documents, data compilations, and tangible things that are in the possession, custody, or control of the party and that the disclosing party may use to support its claims or defenses." Rule 26(a)(1)(13), Fed.R.Civ.P.
20. The rules of discovery place the burden on the responding party to locate responsive documents. Rule 34(b), Fed.R.Civ.P.
21. "A party who has made a disclosure . . . or responded to a request for discovery with a disclosure or response is under a duty to supplement or correct the disclosure or response to include information thereafter acquired" under circumstances which apply here. Rule 26(e), Fed.R.Civ.P.
22. The Defendants' responses in September 2002 failed to disclose the existence and location of the trailer and thus were inadequate and misleading.
23. The Defendants' responses in January 2003 failed to disclose the existence and location of the trailer and thus were inadequate and misleading.
24. Defense counsel's efforts on-site at the trailer in March 2003, searching for documents responsive to the September 2002 discovery requests, were inadequate and incomplete.
25. Defendants' failure to inform Plaintiff's counsel of the trailer and its voluminous contents was not consistent with the duties of disclosure and duties in responding to discovery.
ORDER
WHEREFORE, it is hereby declared, ordered, adjudged and decreed as follows:
a) Plaintiffs' Motion to Compel is GRANTED in part as provided herein;
b) Defense counsel is ordered to make an election between the following alterative and to report its election in writing to the Court by Wednesday, April 16, 2003:
i. To transport, at Defendant's expense, the documents (including file boxes and drawers), which are currently located in a storage trailer in Woodland, California, to Salt Lake City, on or before April 30, 2003 and allow counsel for Plaintiff, at Plaintiff's expense, to inspect, examine, and make copies of the documents; or
ii. To allow counsel for Plaintiff to conduct an on-site inspection of the documents contained in the storage trailer located in Woodland, California in which counsel may inspect, examine, and make copies of the documents, with defense counsel paying Plaintiff's counsel's costs, travel expenses and reasonable attorneys' fees for two (2) days attendant on examining such documents;
c) Counsel for Plaintiff is ordered to report back to the Court and counsel for Defendant regarding the results of his review of the documents made available by Defendants in Utah as presented in Court on April 9th, and the results of his review of the documents discovered on inspection in Utah or in California, and the relative sufficiency of the materials provided by Defendants' counsel as compared to those discovered by personal inspection;
d) The Court will take under advisement Plaintiff's request for costs and expenses incurred in filing Plaintiff's Motion to Compel and for Default Judgment or for an Evidentiary Inference Against Defendant PK Trucking for the Spoliation of Evidence and makes no decision on this issue at this time. Counsel for Plaintiff is ordered to submit to the Court an affidavit of costs and expenses, including attorney's fees, incurred in filing the motion to compel by Wednesday, April 16, 2003, with defense counsel filing any opposition to the affidavit by Wednesday, April 23, 2003;
e) The discovery dates contained in the current Scheduling Order shall remain in effect with no anticipated changes; and
f) The Court reserves judgment on the issue of an evidentiary inference and default judgment sanction until a later date after Plaintiff has had an opportunity to review the documents (including file boxes and drawers) which are currently located in a storage trailer in Woodland, California and reports to the Court as specified in subparagraph c above.