City of East St. Louis, Illinois v. Monsanto Corporation

Filing 192

ORDER. For the reasons explained in the attached Memorandum & Order, Defendants' Combined Motion for Sanctions (Doc. 148) is DENIED without prejudice. Also, at present, the Motion for a Stay or an Extension of the Case Management Schedule (Doc. 149) is DENIED for the reasons requested by Defendants. Any request to amend the Scheduling and Discovery Order, in light of the instant ruling or potentially other changed circumstances, shall be made by a separate motion. Signed by Judge David W. Dugan on 5/9/2024. (jnh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
)
)
Plaintiff,
)
)
vs.
)
)
MONSANTO CO., PHARMACIA LLC, )
and SOLUTIA, INC.,
)
)
Defendants.
)
CITY OF EAST ST. LOUIS,

Case No. 3:21-cv-232-DWD

MEMORANDUM & ORDER
DUGAN, District Judge:
Before the Court are Defendants’ Combined Motion for Sanctions and Motion for
a Stay or an Extension of the Case Management Schedule. (Docs. 148 & 149). Plaintiff filed
a Memorandum in Opposition to each Motion. (Docs. 150 & 151). The Motions were the
subject of a hearing on April 30, 2024. (Docs. 190 & 191). For the reasons explained below,
the Combined Motion for Sanctions is DENIED without prejudice and the Motion for a
Stay or an Extension of the Case Management Schedule is DENIED.
I. BACKGROUND
This case was removed from the Circuit Court of St. Clair County, Illinois. (Doc.
1). Plaintiff filed a Second Amended Complaint for Damages and Abatement (“Second
Amended Complaint”) (Doc. 129) against Defendants, alleging a public nuisance (Count
I), violations of Plaintiff’s Municipal Code (§ 50-71 (Nuisance)) (Count II), abatement
under Plaintiff’s Municipal Code (§§ 50-79 and 62-2) (Count III), a continuing trespass
(Count IV), a design defect (Count V), a failure to warn and instruct (Count VI), and

negligence (Count VII). (Doc. 1, generally). 1 Plaintiff’s allegations relate to “the
contamination of vast swaths of its land with polychlorinated biphenyls…manufactured
in Defendants’ Monsanto Plant in adjacent Sauget, Illinois.” (Doc. 129, pg. 1).
II. ANALYSIS
In their Combined Motion for Sanctions, Defendants argue “[t]he entire basis of
this lawsuit,” namely, soil samples collected by Plaintiff in 2020 and 2022 to bring the
claims at issue, “was destroyed without notice, depriving Defendants of the opportunity
to examine, inspect[,] or test the evidence.” (Doc. 148, pgs. 1, 8-9). Defendants discovered
the destruction of the 2020 and 2022 samples on October 31, 2023, when Plaintiff
responded to their discovery requests. (Doc. 148, pgs. 2, 5). Defendants state Plaintiff
“expressly disavowed any reliance on, and disclaimed any relevance of, the 2020
sampling.” (Doc. 148, pgs. 2, 5-6). This was despite its reliance on those soil samples
throughout the case, including in its First and Second Amended Complaints, initial
discovery disclosures, discovery responses, and other submissions. (Doc. 148, pgs. 2-3).
Moreover, Defendants note the soil samples were the subject of the Court’s
Memorandum & Order denying Plaintiff’s Motion to Quash the Subpoenas Duces Tecum
issued to I2M Associates, LLC, and ALS Environmental. (Docs. 97; 110; 148, pg. 4). In that
Memorandum & Order, the Court noted as follows:
This is a complex case involving the alleged environmental contamination,
over nearly 6 decades, of “large swaths” of Plaintiff’s land. (Doc. 29, ¶¶ 24, 7, 10, 15, 33). Notably, the work at issue relates to soil testing on property
owned by Plaintiff, i.e., approximately 140 parcels of land and 50 rights-of1The

Court dismissed Count II of the Second Amended Complaint without prejudice. (Doc. 171).
The Court found it lacked subject matter jurisdiction to grant the only relief requested in Count II, namely,
fines under § 1-15 of Plaintiff’s Municipal Code, which the Court found to be criminal in nature. (Doc. 171).

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way. (Doc. 97, ¶ 3). The Court cannot be sure that extensive work, which
Plaintiff invoked in the pleadings, is replicable under conditions
sufficiently similar to those encountered by Bost, I2M Associates, and ALS
Environmental. See Polyone Corp. v. Lu, No. 14-10369, 2016 WL 2997904, *2
(N.D. Ill. May 25, 2016) (granting renewed motion to compel documents,
communications, and answers to interrogatories, related to the plaintiff’s
testing of the defendant’s product, due to exceptional circumstances under
Rule 26(b)(4)(D)(ii), where the consultant’s tests and related
communications were disputed facts, relevant to the test results, and
relevant to the defendant’s counterclaim questioning the Plaintiff’s motives
and knowledge). Defendants suggest a replication would be hindered by
changes in subsurface conditions and the impact of the weather. (Doc. 102,
pg. 106). This concern is well-taken due to the nature of Plaintiff’s
allegations. Accordingly, the Court CONCLUDES it is impracticable for
Defendants to obtain facts or opinions, akin to those known or held by Bost,
I2M Associates, and ALS Environmental, by other means. See Fed. R. Civ. P
26(b)(4)(D)(ii).
(Doc. 110, pgs. 8-9). 2
Defendants argue Plaintiff was under a duty to preserve the samples, which, based
on its prior filings and the Court’s Memorandum & Order quoted above, it must have
understood were relevant and material to the claims and defenses in this case. (Doc. 148,
pg. 6). Defendants argue this duty to preserve evidence existed notwithstanding any
recommendations of the Environmental Protection Agency (EPA) related to the
recommended time for testing the samples or the timing of Defendants’ request for the

2The

Court understands the issues discussed in the briefing on the Combined Motion for Sanctions
are of critical importance. However, the Court would be remiss if it failed to note certain statements made
by Defendants in relation to its prior Memorandum & Order. Defendants state: “The evidence that formed
the very basis of the City’s original ordinance citations and subsequent complaints, and the evidence the
City uses to show the physical presence of PCBs on its property—the 2020 and 2022 soil samples—no longer
exists. This evidence, which the Court previously recognized is irreplicable, was destroyed despite the fact that
the City was under a duty to preserve the samples and no doubt understood its relevance and materiality
to the claims and defenses in this case.” (Doc. 148, pg. 6) (Emphasis added and in original.). The Court will
not belabor its point, as the issue was also discussed on the record at the hearing, but a plain reading of the
above-quoted Memorandum & Order reveals that this statement by Defendants misrepresents or
exaggerates the Court’s prior ruling. (Doc. 110, pgs. 8-9; 191, pgs. 7-8).

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samples. (Doc. 153, pg. 4). In other words, Defendants distinguish between the duty to
preserve evidence and the EPA’s recommended time for testing the samples, arguing the
“destruction of the soil samples was not mandated by the EPA.” (Doc. 153, pg. 4).
Regardless, Defendants argue they timely requested the samples. (Doc. 153, pg. 5).
Absent the samples, Defendants argue they cannot independently analyze or
critique Plaintiff’s test results. (Doc. 148, pg. 6). That is, “Defendants have no other means
to acquire contemporaneous data from the time these samples were collected, and
Defendants were not given an opportunity to participate in or duplicate the tests when
they occurred.” (Doc. 148, pg. 12). In Defendants’ view, such duplications are now
impossible due to the ever-changing nature of subsurface conditions, the impact of the
weather, and other spoliation concerns. (Doc. 148, pg. 12). For these reasons, Defendants
seek an order dismissing the case, with prejudice, or an order excluding any use of the
2020 and 2022 soil samples in evidence or expert discovery. (Doc. 148, pgs. 2, 7).
Defendants also seek fees and costs related to wasted resources. (Doc. 148, pg. 2).
Without denying the samples were destroyed, Plaintiff responds that Defendants
point to no order that was violated for purposes of Federal Rule of Civil Procedure 37
and it cannot show bad faith in relation to the Court’s inherent authority. (Doc. 150, pgs.
3-4, 11-15). Further, Plaintiff states “[i]t is well understood that, under EPA guidelines,
PCB samples cannot validly be analyzed more than one year after their collection.” (Doc.
150, pgs. 3, 8, 16). Plaintiff argues Defendants knew of this recommendation but failed to
request the samples sooner, such that they are at fault. (Doc. 150, pgs. 3, 15, 17).

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Further, Plaintiff suggests Defendants misrepresent the Court’s Memorandum &
Order on its Motion to Quash, stating it was “a ruling that [Defendants] w[ere] entitled
to discover facts and opinions about the soil samples…[but not] an order that the samples
themselves ha[d] to be preserved indefinitely.” (Doc. 150, pg. 3) (Emphasis in original.).
Plaintiff seeks to distinguish requests for the samples from requests for the actual results
of the sampling, the latter of which were produced after the denial of its Motion to Quash.
(Doc. 150, pgs. 6-7). As suggested above, though, the parties disagree on the timeline of
Defendants’ requests and whether they were within the 1-year testing window.
Relatedly, Plaintiff argues “the samples are not essential because the primary
evidence of the City’s claims—the contaminated land—remains available for…further
analysis.” (Doc. 150, pgs. 4, 15, 18-20). Plaintiff explains, “[i]t is not clear what further
analysis is required, though, because [Defendants] never explain[] why the City’s
[analysis] is deficient.” (Doc. 150, pgs. 4, 21). Defendants also purportedly failed to
identify what further analyses from the samples are necessary. (Doc. 150, pg. 21).
Defendants have taken inconsistent positions on the source of their Combined
Motion for Sanctions. In that Combined Motion, Defendants state at the outset that, “[b]y
this motion, Defendants seek appropriate sanctions pursuant to Rule 37.” (Doc. 148, pg.
1). Defendants go on to cite Rule 37(b)(2)(A)(i) to (vii) while also accurately
acknowledging that “[i]t is well-settled that the Court has discretion to impose sanctions
under Rule 37 and pursuant to its inherent authority.” (Doc. 148, pgs. 7, 10, 14). In their
Reply, Defendants take the position that they “seek sanctions under the framework of
both Rule 37 and the Court’s inherent authority,” inaccurately stating the two sources of
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sanctions present “a distinction without [a] difference.” (Doc. 153, pgs. 2-3). At the
hearing on the Combined Motion for Sanctions, when pressed by the Court on whether
Defendants were “moving under Rule 37 for this sanction, and if so, what provision of
37,” Defendants answered in the negative, stating “[w]e are moving under the Court’s
inherent power to sanction a party.” (Doc. 191, pg. 10). At a later point in the hearing,
Defendants attorney stated, “as I mentioned, we are not moving under solely a Rule 37
sanctions analysis,” noting the references in the Combined Motion for Sanctions to both
Rule 37 and the Court’s inherent authority. (Doc. 191, pg. 13).
Plaintiff, for its part, notes these inconsistencies and asserts that Defendants have
waived the prospect of sanctions under the Court’s inherent authority. (Doc. 191, pg. 25).
However, the Court’s inherent authority would be quite lame if its exercise could be
dictated by such an argument. Indeed, it would not be inherent authority at all. Therefore,
if the legal standards for an exercise of its inherent authority are satisfied, the Court sees
no reason why Defendants’ inconsistent arguments should bar it from acting.
As a result, the Court will briefly discuss each distinct source for the imposition of
sanctions, namely, Rule 37 and the Court’s inherent authority, before determining their
applicability to the conduct alleged in this case. See In re Pradaxa (Dabigatran Etexilate)
Prods. Liab. Litig., MDL No. 2385, 12-md-2385, 2013 WL 5377164, *5 (S.D. Ill. Sept. 25, 2023)
(discussing Rule 37 and the Court’s inherent authority as the primary sources for the
imposition of sanctions for the failure to preserve evidence).
Initially, the Court notes the District Courts in the Seventh Circuit are not
necessarily speaking in unison when it comes to the level of culpability required for the
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imposition of sanctions for spoliation under Rule 37 and the Court’s inherent authority.
As discussed below, though, the Court takes the position that Rule 37 permits sanctions
when the destruction of evidence violates a discovery order and represents willfulness,
bad faith, or fault, while the Court’s inherent authority permits spoliation sanctions only
when there is a duty to preserve the evidence and its destruction represents bad faith.
First, under Rule 37(b)(2)(A), sanctions may be imposed as follows:
If a party or a party’s officer, director, or managing agent…fails to obey an
order to provide or permit discovery, including an order under Rule
26(f), 35, or 37(a), the court where the action is pending may issue further
just orders. They may include the following:
(i) directing that the matters embraced in the order or other
designated facts be taken as established for purposes of the action,
as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated
matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order
except an order to submit to a physical or mental examination.
Fed. R. Civ. P. 37(b)(2)(A).
As the language of Rule 37(b)(2)(A) shows, sanctions are only proper if a discovery
order or ruling is violated. See, e.g., Brandt v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994)
(“The rule’s plain language limits its applicability to situations where a court order has
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been violated. Moreover, the caselaw reveals that Rule 37(b)(2) has been invoked only
against parties who have disobeyed a discovery ruling of some sort.”); e360 Insight, Inc.
v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011) (“Federal Rule of Civil Procedure
37(b)(2)(A) grants the district courts the power to impose appropriate sanctions for
violations of discovery orders.”); In re Pradaxa, 2013 WL 5377164 at *6 (“While a court
may sanction a party pursuant to Rule 37 for discovery violations, such sanctions are
limited to circumstances in which a party violates a court order or discovery ruling.”).
Further, the Seventh Circuit has recognized, when discussing a Supreme Court
case proceeding under Rule 37, “sanctions may be appropriate in any one of three
instances—where the noncomplying party acted either with willfulness, bad faith[,] or
fault.” Marrocco v. General Motors Corp., 966 F.2d 220, 224 (7th Cir. 1992) (discussing Nat’l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 640 (1976)) (Emphasis in original
omitted.); see also Fed. Nat’l Mortg. Ass’n v. Chicago Title Ins. Co., No. 11-cv-768, 2019 WL
5298728, *3 (S.D. Ind. Sept. 20, 2019) (“Rule 37 sanctions are appropriate where a party
displays willfulness, bad faith, or fault in violating discovery obligations.”) (Emphasis in
original omitted.); Malibu Media, LLC v. Harrison, No. 12-cv-1117, 2014 WL 7366624, *9
(S.D. Ind. Dec. 24, 2014) (noting Marrocco involved sanctions for a violation of a protective
order, not for spoliation, and the standard was derived from National Hockey League,
where the Supreme Court addressed when a court may sanction a party under Rule 37).
Second, the district courts’ inherent authority to impose sanctions “emanates from
the nature of the institution and the need to ‘impose silence, respect, and decorum, in
their presence, and submission to their lawful mandates…so as to achieve the orderly
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and expeditious disposition of cases.’ ” Fuery v. City of Chicago, 900 F.3d 450, 463 (7th Cir.
2018) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). As a general matter, the
inherent authority to impose sanctions may be used against “those who show ‘willful
disobedience of a court order,’ act in ‘bad faith, vexatiously, wantonly, or for oppressive
reasons,’ for fraud on the court, delay, disruption, or ‘hampering enforcement of a court’s
order.’ ” Id. (quoting Chambers, 501 U.S. at 45-46). Sanctions are proper under a district
court’s “inherent authority ‘where a party has willfully abused the judicial process or
otherwise conducted litigation in bad faith.’ ” Id. (quoting Tucker v. Williams, 682 F.3d 654,
661–62 (7th Cir. 2012)). As a result, “[t]he court must first make a finding of ‘bad faith,
designed to obstruct the judicial process, or a violation of a court order.’ ” Id. at 463-64.
(quoting Tucker, 682 F.3d at 662). The impact or effect of the allegedly wrongful conduct
on the case is considered, but there is no standalone requirement of prejudice. Id. at 464.
Of particular importance here, the Seventh Circuit has specifically noted that “a
showing [of bad faith] is a prerequisite to imposing sanctions for the destruction of
evidence.” Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008) (citing
Crabtree v. Nat’l Steel Corp., 261 F.3d 715, 721 (7th Cir. 2001); Mathis v. John Morden Buick,
Inc., 136 F.3d 1153, 1155 (7th Cir. 1998)); accord Malibu Media, LLC, 2014 WL 7366624 at *3.
In this context, “bad faith” means the evidence was destroyed for the purpose of hiding
adverse information. Bracey v. Grondin, 712 F.3d 1012, 1019-20 (7th Cir. 2013);
accord Malibu Media, LLC, 2014 WL 7366624 at *3, 5; see also Mathis, 136 F.3d at 1155
(discussing how a motion for Rule 37(b)(2) spoliation sanctions, due to a violation of a
court order, provides “access to the substantial weaponry in the district court’s arsenal,”
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whereas a motion for spoliation sanctions under a district court’s inherent authority
requires a showing of bad faith). In this way, the focus is on the reason for the destruction
of the evidence and not merely the fact that the evidence was destroyed. Bracey, 712 F.3d
at 1019 (quoting Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002); citing NormanNunnery v. Madison Area Technical College, 625 F.3d 422, 428 (7th Cir. 2010)); accord Malibu
Media, LLC, 2014 WL 7366624 at *9. Absent bad faith, it is not enough that a party had a
duty to preserve evidence but intentionally or negligently destroyed it. Bracey, 712 F.3d
at 1019-20; accord Boutilier v. Menard Inc., 606 F. Supp. 3d 860, 865 (C.D. Ill. 2022). Finally,
a spoliation sanction is proper “only where a party has a duty to preserve [the] evidence
because it knew, or should have known, that litigation was imminent.” Trask-Morton, 534
F.3d at 681-82 (citing Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th
Cir. 2007); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001)); accord Vander
Pas v. Bd. of Regents of Univ. of Wisconsin Sys., 664 F. Supp. 3d 893, 905 (E.D. Wisc. 2023).
Whether imposed under Rule 37 or its inherent authority, a sanction must be
proportional to the offense. Houston v. C.G. Sec. Services, Inc., 302 F.R.D. 268, 281 (S.D. Ind.
2014) (citing Allen v. Chicago Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003); Maynard v.
Nygren, 372 F.3d 890, 893 (7th Cir. 2004)). The Court does not have “unfettered” discretion
to sanction a party, especially where “the draconian sanction” of a dismissal with
prejudice is imposed. Marrocco, 966 F.2d at 223-24 (citing Godlove v. Bamberger, 903 F.2d
1145, 1148 (7th Cir. 1990); Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d
272, 275 (7th Cir. 1986)). The Seventh Circuit has “pointed out on several occasions [that]
‘[a] dismissal with prejudice is a harsh sanction which should usually be employed only
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in extreme situations[] where there is a clear record of delay or contumacious conduct, or
when other less drastic sanctions have proven unavailable.’ ” Id. at 224 (quoting Pyramid
Energy, Ltd. v. Heyl and Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir. 1989) (Emphasis in
original omitted.)). Where the sanction of a dismissal with prejudice has been ordered,
however, the cases involved, inter alia, the alteration, destruction, or failure to produce
relevant evidence. Chamberlain Group, Inc. v. Lear Corp., 270 F.R.D. 392, 397 (N.D. Ill. 2010)
(citing Rhodes v. LaSalle Bank, N.A., No. 2-cv-2059, 2005 WL 281221, *3 (N.D. Ill. Feb. 1,
2005) (collecting cases)). Finally, the Court addresses the breadth of its authority to
impose sanctions in order to highlight that, generally, “a court should not rely on its
inherent sanctioning powers unless other rules or statutes provide an insufficient basis
to issue sanctions.” Pable v. Chicago Transit Auth., No. 19-cv-7868, 2023 WL 2333414, *18
(N.D. Ill. March 2, 2023); see also Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 614
(7th Cir. 2006) (“[T]he inherent power of the court ‘is a residual authority, to be exercised
sparingly’ and only when other rules do not provide [a] sufficient basis for sanctions.”).
Here, the Court initially finds its inherent authority is the only potential source for
sanctions in this case. Assuming Defendants properly invoked Rule 37(b)(2)(A),
notwithstanding their inconsistent positions, the Court agrees with Plaintiff that
Defendants have not identified a discovery order or ruling that was violated, as necessary
for the imposition of sanctions under Rule 37(b)(2)(A). See Fed. R. Civ. P. 37(b)(2)(A);
Brandt, 30 F.3d at 756; e360 Insight, Inc., 658 F.3d at 642; In re Pradaxa, 2013 WL 5377164 at
*6. And, notably, Defendants do not dispute that such a discovery order or ruling is a
prerequisite to sanctions. (Doc. 191, pg. 15). As to one such discovery order or ruling, the
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Memorandum & Order denying Plaintiff’s Motion to Quash the subpoenas issued to I2M
Associates, LLC, and ALS Environmental, Defendants affirmatively state as follows in
their Reply: “The City’s focus on the Order denying its motion to quash is due to its
assumption that Defendants’ Motion is based solely on Rule 37. To be clear, Defendants
do not claim that Order leads to a Rule 37(b) analysis.” (Docs. 110; 153, pg. 3 n. 1)
(Emphasis in original). At the hearing on these issues, Defendants indicated: “I think the
City may have interpreted our motion in a way that it viewed us seeking a Rule 37
analysis based on the Court’s order on the motion to quash. That is not the case.” (Doc.
191, pg. 14). In light of these representations, as well as the fact that Defendants have
failed to identify any other discovery order or ruling that was allegedly violated by
Plaintiff, the Court will not proceed further in the Rule 37(b)(2)(A) analysis. See Malibu
Media, LLC, 2014 WL 7366624, *9 (finding it would be “inappropriate” to apply the
standard stated in Marrocco because the plaintiff did not invoke Rule 37 or otherwise
identify a court order that the defendant disobeyed; instead, “Plaintiff’s motion
apparently relie[d]…on the Court’s ‘inherent power to sanction parties for misconduct
such as spoliation of evidence…’[,] [which] requires a showing of bad faith.”).
As to its inherent authority to impose sanctions, the Court stresses that it shares
many of Defendants’ concerns about the destruction of the 2020 and 2022 soil samples.
While Plaintiff argues the soil samples were not in its custody or control, and it did not
direct the destruction of the soil samples, Plaintiff did hire the professional firms tasked
with collecting and analyzing the soil samples. (Doc. 191, pgs. 26-27, 32, 36-37). Also,
contrary to Plaintiff’s position in this case, there is an obvious distinction between the
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EPA’s recommendation to test a soil sample within 1 year of its collection and the need
to actually destroy the soil sample after 1 year. It does not appear to the Court that the
latter occurrence in any way facilitates the objectives of the former occurrence. Indeed, at
least one professional firm that handled the soil samples indicated: “It is our policy to
hold samples for a minimum of thirty days after invoicing and before disposal, unless
otherwise specified by contract or if the sample is part of litigation. If the sample is part
of litigation, disposal of the physical sample shall occur only with concurrence of the
affected legal authority, sample data user, and/or client.” (Doc. 153-4, pg. 8).
Therefore, although Plaintiff may have no expertise in handling PCBs, as was
argued at the hearing, Plaintiff’s attorneys undoubtedly have expertise in preparing for
and proceeding through litigation. (Doc. 191, pgs. 26-27). And, in terms of preserving the
soil samples for use in this case, the proverbial buck undoubtedly stopped with those
experienced attorneys. Yet the record suggests that they did not take affirmative steps to
preserve the evidence, even though it was likely, perhaps even a certainty, that
Defendants would seek the soil samples and related information. After all, as shown by
the events discussed below, Plaintiff relied on the soil samples throughout the case and
Defendants explicitly requested soil samples in discovery.
Specifically, in both the First and Second Amended Complaints for Damages and
Abatement, filed on April 23, 2021, and April 24, 2023, respectively, Plaintiff alleged the
following in relation to the 2020 soil samples:
In 2020, 200 [or 203] separate soil samples were taken from City-owned lots
and rights-of-ways located to the north and northeast of the Monsanto
Plant. All samples had PCB concentrations that exceeded the U.S.
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background average as referenced in a 2007 EPA study. The maximum
concentration in a reported sample was 75,300 ppb, or approximately 25,100
times the average concentration in U.S. rural soils. The average
concentration of the 200 samples was 3,416 ppb, or 1,138 times the average
U.S. soil concentration, with the greatest concentrations reported in the
samples closest in proximity to the Monsanto Plant.
(Docs. 29, pgs. 5-6; 129, pgs. 5-6).
Despite this reliance, Plaintiff allegedly allowed the 2020 soil samples to be
destroyed on or about October 15, 2021, before the parties began discovery. (Doc. 153, pg.
6). Nevertheless, in its Initial Disclosures under Federal Rule of Civil Procedure 26(a)(1),
dated December 14, 2021, Plaintiff identified individuals, documents, and information or
evidence associated with I2M Associates, LLC, and ALS Environmental, which collected
and analyzed the 2020 soil samples, as supportive of its claims. (Doc. 148-1, pgs. 2-4).
On January 14, 2022, Defendants served their First Set of Requests for Production.
(Doc. 153-5). Again, as of that date, Defendants allege the 2020 soil samples were already
destroyed. However, Defendants’ First Set of Requests for Production nevertheless
provided a comprehensive definition of “documents” that included “samples.” (Doc.
153-5, pg. 5). Defendants also requested “[a]ll DOCUMENTS CONCERNING any
sampling, testing and/or analysis of the soil of any property within the CITY, including
the samples referenced in Paragraph 10 of the COMPLAINT, that YOU allege is
contaminated with PCBS or PCB-CONTAINING PRODUCTS.” (Doc. 153-5, pg. 14).
Similarly, Defendants sought “[a]ll DOCUMENTS YOU intend to refer to, rely on,
present, enter as an exhibit, or otherwise use in connection with the LAWSUIT including,

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but not limited to, in any deposition, in support of or in opposition to any motion, or at
trial.” (Doc. 153-5, pg. 25).
Plaintiff again referenced the 2020 soil samples on April 29, 2022, in its Objections
and Answers to Defendants’ First Set of Interrogatories. (Docs. 148-2; 148-3; 148-4). On
July 13 and 14, 2023, Defendants issued subpoenas to I2M Associates, LLC, and ALS
Environmental in relation to the 2020 soil samples. (Docs. 97-4; 97-5). Those subpoenas
became the subject of Plaintiff’s Motion to Quash, Defendant’s Response to the Motion to
Quash, and the Court’s Memorandum & Order denying the Motion to Quash. (Docs. 97;
102; 110). Even though the 2020 soil samples were allegedly destroyed by that time, the
Court notes Plaintiff’s suggestion that “[t]he subpoenas each sought twenty-three
discrete categories of materials related to the I2M Samples (but not the samples themselves)”
is absurd. (Doc. 150, pg. 6) (Emphasis added.). Indeed, to prove that statement is patently
false, the Court need only take the simplest of steps and actually read the subpoenas. The
first sentence of Exhibit A to each subpoena requested “[a]ny and all records, documents,
emails, photographs, protocols, samples, or data.” (Docs. 97-4, pg. 6; 97-5, pg. 6).
Likewise, the subpoenas sought “[c]opies of instrumental output (chromatographs, mass
spectra, etc.) for analyses in question, including…Samples.” (Docs. 97-4, pg. 6; 97-5, pg.
6). Relatedly, it defies logic for Plaintiff to suggest Defendants, in their Response to the
Motion to Quash, “sought no relief with respect to I2M Samples.” (Doc. 150, pg. 7). Even
if that were true, it is no saving grace, as Plaintiff sought to quash the subpoenas in their
entirety and that was the relief denied by the Court. (Docs. 97, pg. 7; 110).

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In the Second Amended Complaint for Damages and Abatement filed on April 24,
2023, Plaintiff purportedly referenced the 2022 soil samples for the first time, alleging:
In mid-to-late 2022, additional soil samples were taken from 281 Cityowned lots and rights-of-ways located to the north and northeast of the
Monsanto Plant and analyzed using EPA Method 1668C5, a technique that
quantifies individual PCB congeners in environmental samples using
isotope dilution and high-resolution gas chromatography/high-resolution
mass spectrometry. This testing and analysis confirmed that East St. Louis
properties are grossly contaminated with Monsanto PCBs the average
concentration was 1,431 ppb and the highest detected concentration was
22,686 ppb with higher concentrations detected generally downwind and
closest to the Monsanto Plant. In addition, this testing confirmed that the
types and concentrations of PCBs present in East St. Louis properties pose
a substantial risk to human health and safety.
(Doc. 129, pg. 6).
One month later, on May 25, 2023, Plaintiff allegedly produced reports related to
the 2022 soil samples to Defendants. (Doc. 153, pg. 5). However, according to Defendants,
Plaintiff “redacted the identity of the entities involved.” (Doc. 153, pg. 5). Due to missed
redactions, though, Defendants indicate they were able to subpoena the third-party
entities, namely, Alpha Analytical and Cape Fear Analytical, LLC, on July 20, 2023. (Doc.
153-6). The subpoenas, like the prior subpoenas to I2M Associates, LLC, and ALS
Environmental, requested “[a]ny and all records, documents, emails, photographs,
protocols, samples, or data” in the first sentence of Exhibit A. (Doc. 153-6, pg. 8). The
subpoenas also requested “[c]opies of instrumental output (chromatographs, mass
spectra, etc.) for analyses in question, including…Samples.” (Doc. 153-6, pg. 8). As with
the prior subpoenas, Plaintiff cannot argue Defendants failed to seek the physical

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samples. Unbeknownst to Defendants, however, the 2022 soil samples were destroyed on
July 18, 2023, two days before the subpoenas were issued. (Doc. 153, pg. 5).
On October 16, 2023, in their Fifth Set of Requests for Production, Defendants
sought, inter alia, “[a]ll samples from any media…including all residual sampling
material, from any sampling performed by YOU or on YOUR behalf for purposes of
determining the presence and/or concentration of PCBs…whether or not the samples
were analyzed, and whether or not the analytical results were reported.” (Doc. 148-6, pg.
5). They also specifically sought “[a]ll samples, including all residual sampling material
from each of the ‘203 soil samples…taken from City-owned lots and rights-of-way located
to the north and northwest of the Monsanto Plant’ in 2020.” (Doc. 148-6, pg. 5).
Defendants also expressly sought “[a]ll samples, including all residual sampling material
from each of the soil samples taken from ‘281 City-owned lots and rights-of-ways located
to the north and northeast of the Monsanto Plant’ in 2022.” (Doc. 148-6, pg. 5).
In its Amended Initial Disclosures under Rule 26(a)(1), dated October 31, 2023,
Plaintiff removed the individuals, documents, and information or tangible evidence
related to the entities that collected and analyzed the 2020 soil samples, namely, I2M
Associates, LLC, and ALS Environmental, that were previously disclosed as supportive
of its claims. (Docs. 148-1, pgs. 2-4; 148-5). Defendants maintain that Plaintiff disavowed
all reliance on and relevance of the evidence related to the 2020 soil samples by stating:
“To the extent East St. Louis previously listed [ESTL0000000001-0000001360] as
documents it may use to support its claims in this matter, it now states that these

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documents will not be used in support of its claims nor as reliance materials supporting
any expert witness testimony or report in this matter.” (Doc. 148-5, pg. 5).
As to the 2022 soil samples, the Amended Initial Disclosures stated:
The following are entities with persons with knowledge: [an as yet
unidentified environmental company and two analytical companies which
generated and then analyzed the 2022 ESTL soil sampling]. There are as yet
unidentified persons with knowledge from the environmental company
and two analytical companies who are agents of ESTL FRCP 26 retained
testifying experts. Their identities will be disclosed on or before the current
Scheduling Order deadline of February 16, 2024. In the meantime, ESTL has
produced the 2022 soil sampling data to defense counsel.
(Doc. 148-5, pg. 4).
Also on October 31, 2023, in its Responses to Defendants’ Fifth Requests for
Productions of Documents, Plaintiff stated it “has no tangible things responsive to the[]
Request[s] as of this date. The 2020 and 2022 soil samples no longer exist.” (Doc. 148-7).
Now, to be clear, these factual circumstances arguably demonstrate that Plaintiff
was at least negligent and certainly at fault for the destruction of the 2020 and 2022 soil
samples. If not for that negligence or fault, which seemingly could have been avoided
with closer coordination between Plaintiff and the third-party professional firms that
collected and analyzed the soil samples, Defendants would likely be in possession of that
evidence. Regardless, the Court cannot find at present that Plaintiff acted in bad faith in
relation to the destruction of those soil samples, as necessary to impose a spoliation
sanction under its inherent authority. See Fuery, 900 F.3d at 463-64; Trask-Morton, 534 F.3d
at 681; Malibu Media, LLC, 2014 WL 7366624 at *3, 5, 9; Bracey, 712 F.3d at 1019-20; Boutilier,
606 F. Supp. 3d at 865.
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As each party appears to concede, Plaintiff is no longer relying upon the 2020 soil
samples. (Docs. 148, pgs. 2, 5-6; 148-5). Plaintiff, who claims to have learned of the
destruction of the 2020 and 2022 soil samples around the same time as Defendants,
disclaimed evidence related to the 2020 soil samples in its Amended Initial Disclosures
under Rule 26(a)(1). (Docs. 148-5; 191, pg. 27). In any event, it is not altogether clear that
“[t]he entire basis of this lawsuit” has been destroyed, so as to deprive Defendants of an
opportunity to examine, inspect, and test the soils that are at issue in this case. (Doc. 148,
pgs. 1, 8-9). At present, there is nothing in the record to suggest that the samplings
captured in 2020 or 2022 are so unique or lacking in homogeneity with still-existing soils
that sampling of soils adjacent or proximate to the original samplings will not permit
adequate testing. Defendants could test the soils at issue in the case as Plaintiff did in
2020 and 2022. Therefore, it remains to be seen whether the results of such soil samplings
would be similar to or different from the results of the soil samplings done by Plaintiff in
2020 and 2022. As such, the Court is not prepared to find duplications of the results of
the 2020 and 2022 soil samplings are impossible due to the nature of the subsurface
conditions, the impact of the weather, and other spoliation concerns, as suggested by
Defendants. (Doc. 148, pg. 12). It is at least conceivable that the opposite is true.
For these reasons, Defendants’ Combined Motion for Sanctions is DENIED
without prejudice. The Court stresses, though, that any subsequent motion for sanctions
should not rehash arguments addressed in this Memorandum & Order. This ruling is
without prejudice only because Defendants could elect to conduct the soil sampling
contemplated above and the possibility that evidence of Plaintiff’s bad faith could be
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revealed in discovery, which remains ongoing. On the current record, however,
Defendants have failed to make that showing, as required for the requested sanctions.

C. Defendants’ Motion for a Stay
or for an Extension of the Case Management Schedule
Defendants request that the Court stay or extend the discovery and scheduling
deadlines while it considers the Combined Motion for Sanctions. (Doc. 149, pg. 1). A grant
of that Combined Motion will allegedly simplify the issues and conserve resources. (Doc.
149, pgs. 4-5). Defendants also state no party will be prejudiced by such a ruling, but each
party will be prejudiced by proceeding to expert discovery without knowing if the
requested relief will be granted. (Doc. 149, pg. 6). Plaintiff opposes the request. (Doc. 151).
Here, in light of its ruling on the Combined Motion for Sanctions, the Court FINDS
it is no longer necessary to grant a stay or an extension of the scheduling and discovery
deadlines for the reasons articulated by Defendants. The Combined Motion for Sanctions
has been denied, without prejudice, and the parties can proceed according to the
Amended Scheduling and Discovery Order (Doc. 167) that was entered by agreement of
the parties while the instant Motions were pending before the Court. Accordingly, the
Motion for a Stay or an Extension of the Case Management Schedule is DENIED.
III. CONCLUSION
For the reasons explained above, Defendants’ Combined Motion for Sanctions is
DENIED without prejudice and the Motion for a Stay or an Extension of the Case
Management Schedule is DENIED.
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SO ORDERED.
Dated: May 9, 2024
____________________________
DAVID W. DUGAN
United States District Judge

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