Samson Tug & Barge Company Inc. v. United States of America
Order on Motion in Limine
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
SAMSON TUG AND BARGE CO., INC.,)
UNITED STATES OF AMERICA,
ORDER AND OPINION
Motion at Docket 75]
I. MOTION PRESENTED
At docket 75, plaintiff Samson Tug and Barge Co. (“Samson”) filed a motion in
limine, requesting that the defendant United States of America (“United States”) be
precluded from offering evidence in two areas based on its “conduct in discovery” and
its alleged failure to preserve certain records. The motion was been fully briefed,1 and
the court authorized the United States to file a sur-reply.2 Oral argument was not
requested and would not assist the court.
The response is at doc. 76 and the reply at doc. 78.
Samson filed this appeal from the contracting officer’s decision pursuant to the
Contract Disputes Act of 1978, 41 U.S.C. §§ 603, et seq. Because the underlying
contract is a maritime contract, this court, rather than the Court of Claims, has
jurisdiction.3 Samson entered a series of contracts to provide marine transportation
services to the Department of the Navy relating to the Naval Air Station located at Adak,
Alaska. This litigation involves the last of those contracts, Contract No. N62387-95-D8053 (“Contract”), which was a “requirements” contract obligating the Department of the
Navy to ship all cargo of the specified description between Adak and the Pacific
Northwest pursuant to the Contract. Samson alleges that the United States breached
the Contract by shipping a “substantial volume” of cargo that should have been shipped
under the Contract by other means.
Samson’s motion asserts that the United States should be precluded from calling
witnesses to testify in an area as to which discovery, including properly noticed 30(b)(6)
depositions, was sought unsuccessfully by Samson, and that the United States should
be precluded from “relying on theories and positions which would have been either
supported or refuted by documentary records known to have existed at one time in the
sole possession of the government, and sought unsuccessfully by Plaintiff.”4
A. Preclusion of Witnesses
Sampson asks the court to preclude defendant United States from calling any
witness “purporting to have first-hand knowledge of the facts and circumstances
surrounding the decisions regarding which mode of transporting cargo during the period
October 1, 1995 through September 30, 1997 [would be used].”5 Samson asserts that it
sought to depose the officials responsible for making decisions regarding the mode of
Southwest Marine of San Francisco, Inc. v. United States, 896 F.2d 532, 535 (Fed. Cir.
Doc. 75 at 1.
Doc. 75-5 (proposed order).
transportation of cargo through Rule 30(b)(6) depositions, but that the United States
failed to produce any witnesses having first-hand knowledge of the facts and
circumstances surrounding such decisions.
According to United States, it produced “a number of witnesses in various
locations around the country, until such time as Samson’s attorneys expressed a desire
to stop taking further 30(b)(6) depositions.”6 Samson concedes that it discontinued
taking Rule 30(b)(6) depositions of witnesses proffered by the United States. Sampson
says it did so because the United States did not produce a witness as requested that
“had any responsibility for or any knowledge of the criteria applied in the particular
decisions to ship by air.”7 Samson did not file a motion to compel a proper witness
designation under Rule 30(b)(6).
Under the circumstances presented, the court concludes that the appropriate
resolution of this aspect of Samson’s motion is to hold that the United States may not
call any person to testify as to the facts and circumstances involved in decisions relating
to the selection of the transportation mode to be used for moving cargo to and from
Adak during the period covered by the Contract except persons whose depositions have
been taken (whether 30(b)(6) or otherwise), and not to exceed four additional witnesses
whose depositions have not already been taken, on condition that each such additional
witness shall (1) be a person named on the United States’ already filed final witness list,
and (2) be made available for deposition on or before September 19, 2008. If the
parties cannot agree on other times and locations, then each deposition shall be taken
in the offices of the United States Attorney in Anchorage beginning with the first witness
at 9:00 AM on September 11, the second at 9:00 AM on September 12, the third at 9:00
AM on September 15, and the fourth at 9:00 AM on September 16
B. Preclusion of Theory of Defense to Liability
In the second portion of its motion, Samson argues that because the United
States failed to produce full and complete records of cargo carried by air, the court
Doc.78 at 7.
Doc. 84 at 2.
should preclude the United States from “presenting any theory of defense as to liability
or damages that would be either supported by, or possibly refuted by, the missing
documents concerning cargo shipped by air.”8 Samson seeks a sanction so broad that
if imposed it might render it impossible, and certainly would render it difficult, for the
United States to defend against Samson’s claims.
Samson asserts that the missing documents are those which would show the
1. All air flights to and from Adak during the Contract period
2. Description of cargo shipped by the government on these flights
3. Volume of cargo shipped by government on these flights.9
Samson asserts that complete versions of such records must have existed at one time,
because it claims that defense witnesses have testified that all cargo carrying flights
were accompanied by cargo manifests. Certain document summaries have been
disclosed by the United States, and Samson argues these disclosures indicate that
there are underlying records (manifests or otherwise) which have not been produced.
In response, the United States asserts that because such records have not been
located, they either did not exist, were not retained, were never possessed by federal
officers, or were destroyed in the course of ordinary business by agencies unaware of
the FOIA requests.
“Generally, a trier of fact may draw an adverse inference from the destruction of
evidence relevant to a case.”10 However, a party “should only be penalized for
destroying documents if it was wrong to do so, and that requires, at a minimum, some
notice that the documents are potentially relevant.”11 Samson argues that the United
States was put on notice of the need to preserve records for future litigation when
various federal offices received Samson’s 1997 Freedom of Information Act (“FOIA”)
Doc. 75 at 8.
Id. at 4.
Akiona v. United States, 938 F.2d 158, 161 (9th Cir.1991)
requests.12 The decisions in Glover v. BIC Corp.13 and Akiona v. United States14
establish that in this circuit a court may order sanctions against a party, even absent
bad faith, for failure to preserve evidence if the party has notice of potential litigation.
There is no assertion that the United States acted in bad faith, and the court
declines to impose sanctions on other grounds. First, it has not been established that
all of the documents Samson says should have been retained ever existed. Second, it
has not been established that requests were sent to agencies which actually had
whatever records did exist. Third, it has not been established that the documents
sought were in the possession of any government agency at the time the requests were
made. Fourth, the requests did not indicate the documents sought related to potential
litigation. Finally, even were the court to overlook the concerns just recited, it would be
extremely harsh to impose such a puissant sanction based on the record presented.
The motion at docket 75 is GRANTED in part and DENIED in part, as
DATED at this 6th day of August 2008.
/s/JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Doc. 75, Ex. 2.
6 F.3d 1318, 1329 (9th Cir. 1993).
938 F.2d 158, 161 (9th Cir. 1991).
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