Adams, et al v. USA

Filing 2124

MEMORANDUM DECISION AND ORDER - denied in part and reversed in part 1990 Fifth MOTION for Summary Judgment Re Plaintiffs' Fraud, Assumed Duty & Other Claims filed by E.I. Du Pont de Nemours and Company, Inc.; It is denied to the extent it seeks dismissal on spoliation grounds of Youngs claims. It is reserved in all other respects for issues not yet resolved by prior decisions.. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by dks)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TIMM ADAMS, et al.,
Case No. 4:CV 03-49-BLW
Plaintiffs,
v.

UNITED STATES OF AMERICA, et al.,

MEMORANDUM DECISION AND
ORDER RE DUPONT MOTION
FOR SUMMARY JUDGMENT ON
SPOLIATION BY YOUNGS

Defendants.

INTRODUCTION

The Court has before it that portion of DuPont’s motion seeking summary
judgment based on the spoliation of evidence by plaintiff Young. The Court heard oral
argument on the motion on October 3, 2011, and took that issue under advisement. For
the reasons expressed below, the Court will deny the motion.
ANALYSIS
Work Papers of Accountant Condie
DuPont argues that Young’s accountant, Dean Condie, destroyed his work papers
evaluating the contrast between Young’s tax returns showing a negative net income of
several million dollars and financial statements for the same years showing a multimillion
dollar profit. DuPont claims that without Condie’s work papers, it cannot “test and refute
[Young’s] alleged losses and thereby attack its damage claims in this litigation.” See

Memorandum Decision & Order - 1

DuPont Brief (Dkt. No. 1990-81) at p. 3.
The Court has set forth the legal test for spoliation in its decision on the Fife Dairy
plaintiffs in this case. See Memorandum Decision (Dkt. No. 2118). The Court will not
repeat the legal standard here other than to note that DuPont has the burden of producing
evidence that Young ““engaged deliberately in deceptive practices that undermine the
integrity of judicial proceeding.” Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir.
2006).
Assuming arguendo that Condie destroyed his work papers and that as Young’s
agent he was under a duty to preserve those documents once he had notice of litigation,1
the record before the Court does not reveal when the destruction took place. The
deposition excerpts provided to the Court do not identify the date of destruction, and
hence the Court cannot determine whether Condie engaged in conduct sufficient to
warrant spoliation sanctions. Accordingly, the motion on this issue will be denied.
Computer Sale
About 5 years after filing suit, in 2007, plaintiff Young sold his business
computers at auction. The computers contained over 5,000 e-mails with attachments that
had never been produced in discovery. Young’s counsel states that before the sale,
Young downloaded all the e-mails, along with attachments, that were in the computer.
Young’s attorneys then reviewed all the e-mails and attachments to determine that were

1

The Court assumes these matters for purposes of this summary judgment proceeding
only and expresses no opinion as to whether these assumptions are accurate.
Memorandum Decision & Order - 2

responsive to DuPont’s discovery requests, and then produced those e-mails and
attachments to DuPont.
DuPont argued that because these were business computers, they must have
contained more than just e-mails, and yet this recent production contained only e-mails
and attachments. At oral argument, the Court asked Young’s counsel about this very
point:
The Court:

Young’s Counsel:

The Court:

Young’s Counsel:

“[W]as there any other documents on these hard drives other
than emails that were relevant or responsive to a discovery
request?
[T]hose other documents that are responsive were all
collected and produced long before the email controversy,
long before.
So your view is the only thing that was on the Young hard
drives when the computers were sold that had not already
been produced were the emails?
Yes.”

In this colloquy, Young’s counsel represents to the Court that prior to the 2007
computer sale, he had already searched those very computers for documents responsive to
DuPont’s discovery requests and produced those documents. For whatever reason, the emails and attachments were not produced at that time. Much later, when the e-mails were
discovered, the related production involved only those e-mails and attachments.
DuPont has every right to be skeptical here: The fact that over 5,000 e-mails went
unnoticed for years is unexplained in the record. But the e-mails were eventually
produced and DuPont has not shown any prejudice from this late response. Young’s
counsel has represented that all discoverable material has been produced from the

Memorandum Decision & Order - 3

computers. That is sufficient for the Court, and it will deny DuPont’s motion on this
issue.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that DuPont’s motion for
summary judgment (docket no. 1990) is DENIED IN PART AND RESERVED IN
PART. It is denied to the extent it seeks dismissal on spoliation grounds of Young’s
claims. It is reserved in all other respects for issues not yet resolved by prior decisions.

DATED: October 7, 2011

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision & Order - 4