William Lund et al v. 3M Company et al

Filing 875

ORDER DENYING Plaintiff Motion for Issue Sanctions or, in the Alternative, an Adverse Inference Instruction for Spoliation of Evidence 857 by Judge Dean D. Pregerson. (SEE ATTACHMENT FOR FURTHER DETAILS). (jp)

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1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 VICTORIA LUND, individually and as successor-in-interest to WILLIAM LUND, deceased; DAVID LUND, an individual; and SHEILA LUND, an individual, as legal heirs of WILLIAM LUND, Deceased, 15 16 17 Plaintiff, v. 18 3M COMPANY a/k/a MINNESOTA MINING & MANUFACTURING COMPANY, et al., 19 Defendants. 20 ___________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 13-02776 DDP (VBKx) ORDER DENYING PLAINTIFF’S MOTION FOR ISSUE SANCTIONS OR, IN THE ALTERNATIVE, AN ADVERSE INFERENCE INSTRUCTION FOR SPOLIATION OF EVIDENCE [Dkt. 857] 21 Presently before the court is Plaintiffs Victoria Lund, 22 individually and as successor-in-interest to William Lund, 23 deceased, David Lund, and Shelia Lund’s Motion for Issue Sanctions, 24 or, in the alternative, an Adverse Inference Instruction Against 25 Electric Boat Corporation for Spoliation of Evidence. (Dkt. 857.) 26 Having reviewed the parties’ arguments, the court DENIES the Motion 27 and adopts the following Order. 28 1 The court has detailed the relevant background of this case in 2 several prior Orders and assumes the parties’ familiarity with the 3 facts. (See Dkts. 845, 864.) In brief, the heirs of William Lund 4 bring this action to recover for the injuries and eventual death of 5 Mr. Lund, allegedly caused by exposure to asbestos in the course of 6 his employment as a Navy machinist mate responsible for servicing 7 warships. Of particular relevance to the present motion is 8 Plaintiffs’ allegation that Mr. Lund was exposed to asbestos 9 between 1962 and 1965 while working on certain warships that were 10 being constructed at the shipyards of the Electric Boat Division of 11 the General Dynamics Corporation. Accordingly, Plaintiffs sought 12 certain materials from Electric Boat related to the company’s 13 knowledge and historical use of asbestos during discovery. (Parker 14 Decl., Ex. F.) 15 Several months after fact discovery closed, Plaintiffs brought 16 a sanctions motion contending that Electric Boat had spoliated four 17 categories of evidence: 1) historical asbestos insulation dust 18 studies conducted by Electric Boat; 2) material safety data sheets 19 (MSDS) provided by manufacturers, which profile a product’s 20 chemical composition; 3) certain deposition transcripts from cases 21 in which Electric Boat was a party or its employees testified; 4) 22 certain deposition exhibits associated with the depositions. (Dkt. 23 788 at 1.) The district court judge handling the case for pre-trial 24 purposes denied that motion but stated that “[t]he issue of drawing 25 an adverse inference from alleged spoliation of 26 evidence is referred to the judge who will actually try 27 the case.” (Dkt. 829.) On that basis, Plaintiffs have refiled their 28 sanctions motion before this Court arguing that Electric Boat’s 2 1 alleged spoliation of evidence will limit Plaintiffs’ ability to 2 prove causation. As a remedy, Plaintiffs seek a ruling that they 3 have met the causation element of their claim against Electric 4 Boat, or, in the alternative, an adverse jury instruction. (Mot. 5 Issue Sanctions (“Mot.”) 2.) 6 Spoliation, “refers to the destruction or material alteration 7 of evidence or to the failure to preserve property for another's 8 use as evidence in pending or reasonably foreseeable litigation.” 9 Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989 (N.D. 10 Cal. 2012). “A district court may, under its inherent power to 11 control litigation, levy sanctions for the spoliation of evidence.” 12 Peschel v. City of Missoula, 664 F. Supp. 2d 1137, 1141 (D. Mont. 13 2009), citing Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th 14 Cir. 2006). “Sanctions may be levied, however, only when a party 15 knew, or reasonably should have known, that the spoliated evidence 16 was potentially relevant to a claim.” Peschel, 664 F. Supp. 2d at 17 1141, citing Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 18 1993). Bad faith is not required to impose sanctions for the 19 spoliation of evidence. Id. However, the imposition of more severe 20 sanctions, such as dismissal or default judgment, require a finding 21 of “willfulness, fault, or bad faith.” 22 F.3d 951, 958 (9th Cir. 2006). Leon v. IDX Sys. Corp., 464 23 Having reviewed the parties’ submissions, the court finds that 24 Plaintiffs have not met their burden of demonstrating that Electric 25 Boat has spoliated or withheld any relevant evidence. With regards 26 to each category, Plaintiffs have failed to demonstrate that 27 Electric Boat has either destroyed relevant evidence or violated 28 3 1 its duty to preserve documents that might be relevant in reasonably 2 foreseeable litigation. 3 The first category of documents at issue are asbestos 4 insulation dust studies. According to Plaintiffs, Electric Boat has 5 conducted dust surveys since 1968 and kept records of air 6 monitoring studies since 1971 or 1972. (Mot. 9.) Defendant 7 acknowledges keeping these records beginning in 1971 or 1972 but 8 notes that it “has no air monitoring test during the decedent’s 9 tenure at Electric Boat.” (Opp’n 10.) In this same filing, 10 Defendant also states that Plaintiffs were allowed to designate new 11 experts after the close of discovery who relied on “industrial 12 hygiene documents, such as the insulation dust studies performed by 13 Electric Boat during the time period Plaintiffs claim exposure to 14 asbestos at Electric Boat (1962 or 1965).” (Opp’n 2.) Plaintiffs 15 contend that these two statements are in conflict and give rise to 16 an inference that Electric Boat has destroyed or withheld 17 responsive documents. This inference is unwarranted. It is both 18 possible that Electric Boat has no air monitoring tests from the 19 relevant period but has nonetheless turned over any documents in 20 its possession related to dust studies conducted between 1962 and 21 1965. If, on the other hand, these are interchangeable terms, which 22 describe the same evidence, then Electric Boat has mitigated any 23 deficiency in time for Plaintiffs to utilize the evidence in 24 preparing its expert reports. Without more, the court cannot 25 conclude that the record here justifies sanctions. Moreover, if 26 Plaintiffs believe that there was additional undisclosed evidence, 27 it should have flied a timely motion to compel rather than seek 28 relief with this sanctions motion. 4 1 The arguments regarding the second category of evidence, the 2 MSDS, suffers from a similar defect. Plaintiffs seek MSDS that 3 Electric Boat received from manufacturers, which detail the 4 chemical composition of products used in constructing the warships 5 at issue. (Mot. 8.) Both parties agree that Electric Boat only 6 began receiving these MSDS in 1970 or 1971. (Compare Mot. 8 with 7 Opp’n 8.) Defendants explain that, while they continue to possess 8 certain MSDS post-dating 1970, they did not submit these documents 9 in discovery because they were not within the scope of discovery. 10 (Opp’n 8-9.) Here, again, Plaintiffs note a contradiction between 11 this representation and the representation in Electric Boat’s 12 opposition to the prior sanctions motion where Electric Boat states 13 “There is nothing . . . implying that Electric Boat would maintain 14 every single MSDS sheet received from 1971 forward to 2015, 15 some 40 years later.” (Dkt. 791 at 9.) Whether or not the relevant 16 MSDS were within the scope of discovery, the proper course of 17 action for Plaintiffs would have been to file a motion to compel 18 production. Perhaps if Electric Boat had represented to Plaintiffs 19 that they did not possess these documents in response to a 20 discovery request, there might be a colorable argument that 21 Plaintiffs could not have been expected to attempt to compel 22 production. But Plaintiffs submit no such evidence here. Rather, 23 they attempt to rely on a representation made months after the 24 close of discovery, which cannot explain their failure to timely 25 compel production. Moreover, there is no evidence to support the 26 conclusion that Plaintiffs spoliated relevant evidence or to 27 justify the sanctions Plaintiffs now seek. 28 5 1 Finally, Plaintiffs have not met their burden of showing that 2 Electric Boat spoliated certain deposition transcripts and 3 associated deposition exhibits. According to Plaintiffs, Electric 4 Boat submitted ten depositions from past asbestos personal injury 5 cases involving Electric Boat. (Mot. 5.) Through their own 6 research, Plaintiffs found thirty-three additional depositions of 7 Electric Boat’s “former employees and other witnesses” in asbestos 8 personal injury cases. (Id.) Moreover, Plaintiffs note certain 9 exhibits are missing from the ten depositions submitted by Electric 10 Boat, which Plaintiffs believe are relevant tp proving Electric 11 Boat’s liability in this case. (Id.) 12 Defendants respond that they have submitted all relevant 13 deposition transcripts in their possession, including some of the 14 exhibits which Plaintiffs contend are missing. (Opp’n 5-8.) 15 Moreover, Defendants contend that Plaintiffs have submitted no 16 authority for the proposition that Electric Boat is required to 17 keep a record of all depositions where its “former employees and 18 other persons” have given testimony regarding asbestos nor any 19 evidence that the additional depositions uncovered by Plaintiffs 20 were in Electric Boat’s possession. This is particularly relevant 21 given that Plaintiffs are seeking transcripts prepared for 22 litigation that took place decades ago. Defendants also argue that 23 Plaintiffs have suffered no prejudice because its expert witnesses 24 have had access to the allegedly spoliated transcripts for the past 25 two years and have relied on them in developing their expert 26 conclusions that Electric Boat caused Mr. Lund’s injuries. (Opp’n 27 12.) Given that Plaintiffs cannot demonstrate that Electric Boat 28 had control over the allegedly spoliated deposition transcripts and 6 1 exhibits sought, much less a duty to preserve them, the court 2 DENIES Plaintiff’s Motion for Sanctions. 3 4 IT IS SO ORDERED. 5 6 7 Dated: October 24, 2016 DEAN D. PREGERSON United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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