Two fishing boats voyaged into the ocean of e-Discovery when the Plaintiff learned of digital photos and video of a collision that was not produced in discovery. May v. F/V LORENA MARIE, 2011 U.S. Dist. LEXIS 52695, (D. Alaska May 16, 2011).
The discovery dispute surfaced like a carb pot after the close of discovery. The Plaintiff (owner of the F/V Northwestern) brought a motion to compel for photos and video that were taken by the Defendants. Additionally, the Plaintiff brought a spoilation motion. May, at *1-2.
The underlining facts involve the a collision between the F/V Lorena Marie and the F/V Northwestern during the “flare” opening of salmon fishing in Kitoi Bay, Alaska. May, at *2-3. Witnesses related to the Defendant were in a small boat and took photos and video of the collision. Some of the photos and video were produced in discovery. The Plaintiff claimed two videos were not produced. May, at *3.
Photos were produced from the Defendant’s grandson taken before and after the collision, but not of the collision itself (possibly evidence of a production gag). The witness also claimed he no longer had control of his photos/video, because the hard drive having been lost or stolen. May, at *3-4.
The Plaintiff argued the electronically stored information should have been produced earlier in the case, because it was likely the photos and video would show who was at fault for the collision. May, at *4-5. As one of the witnesses was the Defendant’s grandson who lived with the Defendant, the Plaintiff claimed the Defendant had a duty to locate and produce the ESI. May, at *5.
The Plaintiff argued the ESI should have been produced under Federal Rule of Civil Procedure Rule 26 as an initial disclosure and under Rule 34 as it was requested in discovery. May, at *5-6.
The Defendant countered that since the hard drive with the photos and video was lost, the Plaintiff had the burden of showing the producing party actually had the information to produce. May, at *6.
The Plaintiff requested that since the Defendants failed to produce the photos and video, that the Court make a factual finding as a spoilation sanction that the Plaintiff had the right of way and the Defendants were at fault for the collision. May, at *6-7.
The Court quickly recounted that spoilation is the “destruction or material alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” May, at *7. Furthermore, the duty to preserve requires when a party does not “own or control the evidence, [they] 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.” May, at *8.
A Court must first find the missing discovery was critical to the moving party’s case before issuing sanctions. In the current lawsuit, the Plaintiff claimed the ESI would show who was at fault for the collision. May, at *8-9.
The Court held the pending motion in abeyance pending the testimony to be given in the witnesses’ depositions. May, at *9.
The Court did re-open discovery on a limited basis to depose the photographers with the possibly relevant missing photos and video. May, at *10-11. The un-produced photos and video could be relevant to the lawsuit, which the Defendant should have known about, since the photographers were relatives and friends of the Defendant. May, at *10-11.
Bow Tie Thoughts
Relevant ESI outside of a producing party’s control will be litigated as we continue to use “cloud” services. The requirement that a party must give an opposing party notice of access or of the possible destruction of evidence they do not own or control is a tidal wave waiting to shatter wheelhouse windows. Further complicating discovery in such situations is the Stored Communication Act, which rightly bars third-party requests as an end run around Federal Rule of Civil Procedure Rule 34 requests. In such situations, one can imagine having to do a Rule 34 request to the producing party, who in turn must go to their stored communication provider for the production of whatever “cloud” base data needs to be produced.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.