May v. F/V Lorena Marie, O.N. 939683 et al

Filing 57

JDR ORDER Holding in abeyance Motion 41 to Compel Production of Photos & Film or for Application of Spoilation of Evidence Rule, until completion of depositions;Denying Motion 44 to Quash Depositions; Granting Motion 48 for Exten sion of Time to Complete Discovery; Accordingly, depositions shall be completed no later than 7/1/2011; Plaintiff's Supplement to Motion at Docket 41 shall be filed by COB on July 15, 2011; Defendants' response, if any, shall be due by COB 7/29/2011. Order signed by Judge John D. Roberts. (JAM, Chambers Staff)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

RAYMOND MAY,
Plaintiff,
Case No. 3:09-cv-00114-JWS-JDR

vs.
F/V LORENA MARIE, Official No.
939683, her Tackle, Apparel, Boats,
Appurtenances, In Rem; JAMES
SKONBERG and JANE DOE
SKONBERG, husband and wife, In
Personam,
Defendants.

ORDER REGARDING MOTION TO
COMPEL PRODUCTION OF
PHOTOS AND FILM OR FOR
APPLICATION OF SPOILATION
OF EVIDENCE RULE [41];
MOTION TO QUASH
DEPOSITIONS OF DARREN
MULLER AND DEVIN [sic]
SKONBERG AND FOR
SANCTIONS [44]; and
PLAINTIFF’S MOTION TO REOPEN DISCOVERY ON A LIMITED
BASIS [48]
Dockets 41, 44 & 48

Plaintiff filed a Motion to Compel Production of Photos and Film or for
Application of Spoliation of Evidence Rule at Docket 41. Defendants filed their

Opposition at Docket 50 and Plaintiffs Reply was filed at Docket 52. Plaintiff asserts
that there exist a DVD, video film and photographs showing the collision between the
F/V LORENA MARIE and the F/V NORTHWESTERN and the events surrounding
the collision that have yet to be produced by the Defendants. He seeks the
production of these items.

In the alternative, he asks the court to apply the

Spoliation of Evidence, or Establishment, Rule.
In response to Plaintiff’s Motion at Docket 41 and to Plaintiff’s request
to depose Devon Skonberg and Daren Muller, Defendants filed a motion to quash
the depositions and to sanction the Plaintiff for costs associated with the filing of the
motion.

Docket 44.

Plaintiff filed a Response in Opposition at Docket 53.

Defendants cite the close of discovery in July 2010 and Plaintiff’s failure to provide
reasonable notice in compliance with Federal Rule of Civil Procedure 30(b) in
support of their Motion.
Finally, in response to Defendants’ Motion at Docket 44, Plaintiff filed
a Motion to Re-Open Discovery on a Limited Basis to allow for further investigation
of the newly discovered videos and images relating to Daren Muller and Devon
Skonberg at Docket 48. Defendants filed their Response in Opposition at Docket 55
and Plaintiff filed his Reply at Docket 56.
The facts surrounding the motions and the items requested are
somewhat confusing. As such, a brief recitation is appropriate.

2

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

I.

Facts

On August 25, 2007, Defendant Skonberg’s commercial fishing vessel,
the F/V LORENA MARIE, and Plaintiff’s commercial fishing vessel, the F/V
NORTHWESTERN, collided during the “flare” opening for salmon in Kitoi Bay,
Alaska. Several witnesses were taking still and video images from a runabout during
the time the vessels collided. Defendants’ grandson, Devon, Defendants’ friend,
Darren Muller, and Defendants’ friend Donald Kewan, Jr., all took images (video and
still) of the opener. Many of those images have been discovered.
Plaintiff claims there are still two videos which have not been
discovered. One video was shot by Darren Muller. The other was shot by Donald
Kewan, Jr., given to Devon Skonberg and transferred to DVD by Devon Skonberg.
Mr. Kewan asserts he no longer has control of his video and the Plaintiff seeks
discovery of the original Kewan video, and all DVDs made therefrom.1
The Plaintiff, through viewing other images of the events of the day, also
learned that some still and video images were shot by Defendants’ grandson, Devon
Skonberg. After requesting the images from Devon Skonberg over a period of
months, the Plaintiffs were given some of the images on November 12, 2010.
Plaintiff alleges that the images which were given to the Plaintiff by the Defendant

1

It appears that some edited version(s) of this video have been produced
by the Defendant. However, Plaintiff seeks the original, full-length video, along
with all copies of the DVDs.
3

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

were incomplete.2 The images produced appear to capture events before and after
the collision, but not the collision itself. In the interim, Devon Skonberg claims to
have recently lost the computer hard drive which contained the images. Devon
stated in a filed affidavit, however, that all relevant images and video clips were
already turned over to the parties.3
The Plaintiff argues that the Defendants should have located and turned
over Mr. Muller and Devon Skonberg’s images months ago. Based on Muller and
Devon Skonberg’s locations during the collision (as seen in other videos and images
already produced), Plaintiff believes these images not yet discovered likely will show
who was at fault for the collision, thus bearing significantly on the outcome of the
case. Defendant argues that there are no further items to be discovered.
Additionally, Plaintiff notes that the Defendants are acquaintances with
Mr. Muller, serving on a board with the Defendant James Skonberg. And, Devon
Skonberg is Defendants grandson and resides with the Defendants. Therefore,
Plaintiff argues that it is the Skonbergs’ responsibility to locate and produce the
items in question.
Discovery closed in this matter on July 1, 2010.

2

The photographs were digitally numbered and photos numbered 1-142,
156-178, 182-189, 191, 217, 225, and 231 and higher were left out of the
discovery. See Docket 43, Declaration of Steven V. Gibbons, paragraph 6.
3

Declaration of Devon Skonberg, Exhibit G, Docket 50-8,
4

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

II.

Analysis Regarding Docket 41

The Plaintiff requests alternative forms of relief. First, he seeks the
production of Daren Muller’s video, Donald Kewan Jr.’s video and the missing video
and still images taken by

Devon Skonberg.

In the alternative, he seeks

enforcement of the Spoilation of Evidence, or Establishment Rule.
Plaintiff cites Federal Rules of Civil Procedure 26 and 34 in support of
his motion. Rule 26(a)(1) governs initial disclosures, requiring each party to provide
“the name and, if known, the address and telephone number of each individual likely
to have discoverable information–along with the subjects of that information–that the
disclosing party may use to support its claims or defenses, unless the use would be
solely for impeachment.” Plaintiff asserts that the Defendants should have disclosed
information about the videos and images taken by Mr. Muller, Mr. Kewan and Devon
Skonberg as part of their initial disclosures, and to supplement the disclosures “in
a timely matter.”4 Furthermore, despite the requirement for disclosures found in Rule
26, the Plaintiff specifically requested the information in Plaintiff’s Interrogatory
Number 2, for production of all DVDs and video tapes of the events.5 These
requests were timely under Federal Rule of Civil Procedure 34.

4

See Federal Rule of Civil Procedure 26(e).

5

See Docket 41, p. 8, citing Docket 43, Declaration of Gibbons at
paragraph 4.
5

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

Defendants claim that the hard drive where Devon Skonberg stored the
images he took has now been stolen or lost. And, they argue that Plaintiffs must
make a showing that the producing party actually possesses a document in order to
have a proper motion to compel.6
Because the Defendants failed to comply with the requests for
production and the requirements of Rule 26, the Plaintiff asks for production now or
for the court to issue an order pursuant to the Spoilation Rule. Plaintiff seeks for the
court to rule that the facts the Plaintiff alleges (that the Plaintiff had the right of way
and the Defendants did not and that the Defendants were at fault for the collision)
would be confirmed by the missing images as stated in Plaintiff’s deposition
testimony.7
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.”8 The Federal Court has the ability to impose sanctions for
spoilation arising from the court’s “inherent power to control the judicial process and
litigation, but the power is limited to that necessary to redress conduct ‘which abuses

6

See Alaska R. Civ. P. 34; Fed. R. Civ. P. 34; See also Ascom Hasler
Mailing Systems, Inc., v. U.S. Postal Service, 267 F.R.D. 1 (D.D.C. 2010).
7

See Id.

8

West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)
(citing Black’s Law Dictionary 1401 (6th ed. 1990)).
6

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

the judicial process.’”9 Prior to imposing sanctions, the court must first make a
finding of fault.10 Then, the court should fashion a remedy which serves “the
prophylactic, punitive, and remedial rationales underlying the spoilation doctrine.”11
With respect to a party’s duty to preserve material evidence, even if the
party does not “own or control the evidence, he 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.”12
However, prior to imposing sanctions or redressing conduct, it must be
shown whether the missing evidence is critical to the case of the moving party.

13

Here, the Plaintiff asserts it is likely that the missing images would determine who
was at fault for the collision.

9

Silvestri v. General Motors Corporation, 271 F.3d 583, 590 (4th Cir. 2001).

10

Id.

11

Id. (quoting West, 167 F.3d at 779).

12

Id. at 591 (citing Andersen v. Schwartz, 687 N.Y.S.2d 232, 234-35
(N.Y.Sup.Ct. 1999)); see also Wm. T. Thompson Co. v. General Nutrition Corp.,
Inc., 593 F.Supp. 1443, 1455 (“While a litigant is under no duty to keep or retain
every document in its possession once a complaint is filed, it is under a duty to
preserve what it knows, or reasonably should know, is relevant in the action, is
reasonably calculated to lead to the discovery of admissible evidence, is
reasonably likely to be requested during discovery, and/or is the subject of a
pending discovery request.”)
13

See Nichols v. State Farm Fare and Casualty Co., 6 P.3d 300, 304
(Alaska 2000); see Babich v. River Oaks Toyota, 879 N.E.2d 420 (1st Dist.,
2007).
7

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

The Court will hold the Motion at Docket 41 in abeyance pending the
depositions of Daren Muller & Devon Skonberg. Following the depositions, Plaintiff
may file a supplement with information regarding the probative value of the images
and video.
III.

Analysis Regarding Docket 44

Discovery in this matter formally closed July 1, 2010. Following the
close of discovery, it was learned that the video originally discovered to the Plaintiff
by the Defendants as Mr. Muller’s video was actually taken by Mr. Kewan. It was
also learned that Devon Skonberg, Defendants’ Grandson, took video and still
images during the time of the collision. The Defendants did not disclose the
existence of the images taken by Devon Skonberg until after the close of discovery.
Plaintiff began to seek Mr. Muller’s video and the images taken by Devon Skonberg
and the original video taken by Mr. Kewan. Part of that process was to request to
depose Devon Skonberg and re-depose Mr. Muller.
Federal Rule of Civil Procedure 30(b) requires that “[a] party who wants
to depose a person by oral questions must give reasonable written notice to every
other party.” Defendants claims the Plaintiff only gave seven (7) days notice of the
scheduled depositions and, therefore, Defendants sought a protective order to

8

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

prevent the depositions. This court granted Defendants’ request as to quashing the
depositions date of April 8, 2011.14
The court will not, however, sanction the Plaintiff as requested by the
Defendant.

Plaintiffs conduct and notice are not so egregious as to warrant

sanctions. As will be noted further regarding the Plaintiff’s Motion at Docket 48, it
is reasonable for the court to re-open discovery to all for exploration of the video and
still images taken by Devon Skonberg and Daren Muller.
Defendants’ Motion for Sanctions at Docket 44 is HEREBY DENIED.
IV.

Analysis Regarding Docket 48

Plaintiff filed a Motion to Re-Open Discovery on a Limited Basis to allow
for further investigation of the newly discovered videos and images relating to Daren
Muller and Devon Skonberg. It is clear from Plaintiff’s Motion at Docket 41 that there
are newly discovered video and still images that are relevant. Plaintiff also asserts
that the images not turned over in discovery by Devon Skonberg may also be
relevant.
Defendant knew or should have known of the existence of the videos
taken by Daren Muller and Donald Kewan and the images and video clips taken by
Devon Skonberg. These individuals are family and friends of the Defendants and
were present at the time of the incident. Disclosure of the existence of these images

14

See Docket 47.
9

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

should have been made long ago. It is proper to re-open discovery to further
examine the recently discovered images and to probe the content of the nondiscovered images taken by Devon Skonberg, which Defendant now claims have
been lost, the original video taken by Mr. Kewan and the video taken by Mr. Muller.
The Plaintiff’s Motion at Docket 48 is HEREBY GRANTED. Plaintiff
shall communicate with the Defendants and schedule depositions in accordance with
Federal Rule 30(b). The depositions shall be completed no later than July 1,
2011. Further, should Devon Skonberg’s hard drive be recovered, the images which
were taken on the day of the incident which were not discovered to the Plaintiff shall
be immediately made available.
//
//
//
//
//
//
V.

Conclusion

The Motion to Compel or for Application of Spoilation Rule at Docket
41 is HEREBY HELD IN ABEYANCE pending the completion of depositions. The
Motion at Docket 44 for Sanctions is HEREBY DENIED. The Motion at Docket

10

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd

48 to Re-Open Discovery on a Limited Basis is HEREBY GRANTED.
Depositions shall be completed no later than July 1, 2011. Plaintiff’s supplement
to his Motion at Docket 41 shall be filed by close of business on July 15, 2011.
Defendants’ Response, if any, shall be filed by close of business on July 29,
2011.
IT IS SO ORDERED.

DATED this 16th

day of May, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

11

09-cv-114-JWS-JDR FV LORENA MARIE Order @ Dockets 41, 44 & 48 Re Discovery Spoilation, Sanctions & Re Opening of Discovery.wpd