Richard et al v. Inland Dredging Co L L C

Filing 42

MEMORANDUM RULING re 38 MOTION for Sanctions filed by John D Richard, Sr. For the reasons herein, Richard's Motion for Sanctions is denied. Signed by Magistrate Judge Patrick J Hanna on 9/29/2016. (crt,Alexander, E)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONICA JUNE RICHARD, ET AL.

*CIVIL NO. 6:15-0654

VERSUS

*JUDGE DOHERTY

INLAND DREDGING COMPANY, LLC

*MAGISTRATE JUDGE HANNA

MEMORANDUM RULING
Before the Court is the Motion for Sanctions Pursuant to Rule 36 and Inherent
Powers of the Court for Misrepresentations in Discovery, Failure to Admit and
Spoliation filed by plaintiffs John Richard, Sr., Monica June Richard, individually and
on behalf of their minor child, M.E.R. ("Richard"). [rec. doc. 38]. Inland Dredging
Company, LLC ("Inland") has filed Opposition. [rec. doc. 40].
For the following reasons, Richard's Motion for Sanctions [rec. doc. 38] is
denied.
Background
Richard filed suit on March 19, 2015 seeking damages for injuries allegedly
sustained on March 25, 2014, when, while climbing down the stairs from the crane he
was operating on a crane barge for a dredge barge, the Kelly L, he allegedly fell as a
result of a "gap in the steps/stairs" which also were not equipped with a handrail. [rec.

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doc. 1, ¶9]. On January 20, 2016, Richard propounded Interrogatories. With respect to
the stairs in question, Interrogatory number 10 requested Inland to identify "(h) the
number of treads on the stairs/steps at the time of the incident" and "(c) whether the
stairs/steps were equipped with any handrails." Interrogatory 12 requested information
about modifications or changes to the steps in question after the accident.
Interrogatory 6 asked Inland to identify any photographs of the "equipment and/or
barges where the incident occurred. . . " [rec. doc. 38-4, pg. 5-7].
On March 18, 2016, Inland responded to Interrogatory 10 as follows: "The
Defendant is still investigating and will supplement this Interrogatory in the near
future." Inland responded to Interrogatory 12 as follow: "The Defendant objects to
Interrogatory No. 12 as any information related to post-remedial measures is not
calculated to lead the discovery of admissible evidence." Inland responded to
Interrogatory 6 regarding photographs as follows: "None are presently known to exist."
[rec. doc. 38-5, pg. 11-12].
Richard's deposition was taken on April 8, 2016. Plaintiff testified that at the
time of the accident the step was not "high enough, close enough to the top of the track"
and that it was about "a foot-and-a-half lower than the top of the track." After the
accident, while declining to say that a step was previously missing, plaintiff testified
that "they added [a step] that wasn't there before." [rec. doc. 38-6, pg. 6-7].
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On April 28, 2016, Inland supplemented its prior discovery responses. With
respect to Interrogatory 10(h), Inland stated"The defendant presently believes there to
have been five steps at the time of the accident - the same as exist today." With respect
to Interrogatory 12 Inland stated "The Defendant believes that a handrail may have
been installed after the incident is alleged to have occurred."
On May 24, 2016, Richard propounded Requests for Admissions. Request 5
asked Inland to admit or deny "that at the time of the incident the steps/stairs leading
from the crane on the crane barge were missing a step." [rec. doc. 38-8, pg. 4].
On June 23, 2016, Inland denied Request for Admission 5. [rec. doc. 38-9, pg. 3].
In response to an accompanying Interrogatory asking for all facts that support a denial,
Inland responded "The Defendant does not believe that the steps to the crane were
broken or missing." [rec. doc. 40-8].
On June 29, 2016, Richard deposed Tim Dyer, the Inland Project Manager. Dyer
testified that at the time of the accident there were four steps. After the accident Jeff
Barfield, a leverman and welder/fabricator, cut out the steps and put in five steps, which
decreased the space between each step. Richard's counsel reserved his rights to pursue
the issue further and defense counsel stated that "based on any testimony today we'll
review and amend any necessary discovery responses." [rec. doc. 38-11, pg. 4-6, rec.
doc. 40-2, pg. 1-3, depo. pgs. 107, 110-112, 114].

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Dyer additionally testified that he investigated the accident. In connection with
his investigation, he "probably" took photographs as that was his normal procedure,
that he "would have taken photographs" and "would have took a picture of the steps",
but "I don't know", and "I can't tell you that I took the pictures, because I have no way
of even looking them up." This is so because Dyer testified that any such photographs
were on his office barge in his laptop and Inland-owned hard drive, which barge sank
on April 7, 2016. If somebody would have asked for the photographs before the barge
sank, Dyer "absolutely" could have produced them. [rec. doc. 38-11, pg. 8-11, depo. pg.
139-142].
Mr. Dyer also testified that during the course of the litigation, he was never asked
to produce any photographs and was never asked what changes, if any, were made to
the steps. [rec. doc. 38-11, pg. 14, depo. pg. 149].
On July 19, 2016, Inland supplemented its prior discovery responses. In
response to Interrogatory 10(h) Inland stated "the Defendant presently believes there to
have been four steps at the time of the accident." In response to Interrogatory 12,
Inland stated "The defendant believes that a handrail was installed after the alleged
accident. Further, the Defendant believes that the original four steps were removed
and five steps installed. This modification was made by Mr. Barfield with the
knowledge of Mr. Tim Dyer." [rec. doc. 38-12, pg. 6]. The cover letter enclosing these
supplemental responses indicates that following Mr. Dyer's deposition, Mr. Dyer
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located his investigative file on the computer aboard the Kelly L. The file contained no
photographs and Mr. Dyer had "confirmed for me that if there had been any pictures,
they would have been contained with these documents." A copy of the entire file was
provided to Richard's counsel. [rec. doc. 40-4].
In Opposition to the instant Motion, Inland submits the affidavit of Tim Dyer
wherein he states that he normally would take photographs, however, he could not
recall if he "did in fact take photographs of the crane barge stairs at issue. . . ." He
further states that his laptop was lost in a barge sinking incident, on which was his copy
of the investigative file. Following his deposition, he searched for another copy of the
investigative file and he "found a copy on a computer still aboard the Kelly L dredge."
Dyer affirms that the file "did not contain any photographs. Had I taken photographs of
the crane barge stairs at issue they would be contained within this investigative file."
Dyer further affirms that at the time of the accident, the crane barge stairs consisted of
four stairs, none of which were missing or broken. After the accident, the four crane
barge stairs were replaced with a set of five stairs. These stairs "did not replace any
missing or broken stairs form the original set of four (4) stairs." [rec. doc. 40-3].
Law and Analysis
The Court's inherent power to issue sanctions is limited. The Fifth Circuit has
confined such sanctions to instances of bad faith or willful abuse of the judicial process.
Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990) (citations omitted). The Fifth
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Circuit has further noted that in the context of the federal court's inherent power, a
court must make a specific finding that the sanctioned party acted in bad faith1, and that
“bad faith” is judged by “necessarily stringent” standards. Pressy, 898 F.2d at 1021.
Bad faith “is not simply bad judgment or negligence, but rather it implies the conscious
doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a
state of mind affirmatively operating with furtive design or ill will.” Turfgrass Group,
Inc. v. Northeast Louisiana Turf Farms, LLC, 2013 WL 6145294, *3 (W.D. La. 2013)
(citations omitted). The Court's mere displeasure is not enough. Bergquist v. FyBX
Corp., 2003 WL 22384934, *2 (E.D. La. 2003) citing Elliot v. Tilton, 64 F.3d 213, 217
(5th Cir.1995). Thus, the threshold for imposition of such sanctions is "high." Kipps v.
Callier, 197 F.3d 765, 770 (5th Cir. 1999). Indeed, the Supreme Court has cautioned
that “[b]ecause of their very potency, inherent powers must be exercised with restraint
and discretion.” Chambers v. Nasco, Inc., 501 U.S. 32, 111 S.Ct. 2123, 2132–33, 115
L.Ed.2d 27 (1991).
Rule 37(c)(2) addresses whether a failure to admit is sanctionable. That Rule
provides in pertinent part:
(2) If a party fails to admit what is requested under Rule 36 and if the
requesting party later proves a document to be genuine or the matter true,
the requesting party may move that the party who failed to admit pay the
reasonable expenses, including attorney's fees, incurred in making that

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Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995).

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proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it
might prevail on the matter; or
(D) there was other good reason for the failure to admit.
Thus, under Rule 37(c)(2)(C) a party should not be sanctioned if its denial was
based on a “reasonable” belief that it “might prevail on the matter.” David v. Katz, 2000
WL 1682999, *2 (E.D. La. 2000). One commentator has stated that the “reasonable
grounds” exception is “the most important” consideration that justifies the “refusal to
make an award under Rule 37(c).” Id. citing 8A Charles A. Wright, Arthur R. Miller, &
Richard L. Marcus, Federal Practice and Procedure § 2290, at 711-12 (1994).
In general, spoliation of evidence “is the destruction or the significant and
meaningful alteration of evidence.” Guzamn v. Jones, 804 F.3d 707, 713 (5th Cir. 2015).
The Fifth Circuit permits "an adverse inference against the spoliator or sanctions
against the spoliator only upon a showing of 'bad faith' or 'bad conduct.'” Guzman, 804
F.3d at 713 citing Condrey v. SunTrust Bank of Georgia, 431 F.3d 191, 203 (5th Cir.
2005). "Bad faith, in the context of spoliation, generally means destruction for the
purpose of hiding adverse evidence." Guzamn, 804 F.3d at 713 citing Mathis v. John
Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998). Mere negligence is generally
insufficient. Vick v. Texas Employment Comm., 514 F.2d 734, 737 (5th Cir. 1975).

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Rule 37(e) provides sanctions against a party for the failure to preserve
electronically stored information. See Fed. R. Civ. P. 37(e) That Rule provides
If electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery, the court: (1) upon finding prejudice to
another party from loss of the information, may order measures no greater
than necessary to cure the prejudice; or (2) only upon finding that the party
acted with the intent to deprive another party of the information's use in
the litigation may: (A) presume that the lost information was unfavorable
to the party; (B) instruct the jury that it may or must presume the
information was unfavorable to the party; or (C) dismiss the action or enter
a default judgment.
A Court must determine that four predicate elements are met under Rule 37(e)
before turning to the sub-elements of (e)(1) and (e)(2): (a) the existence of ESI of a type
that should have been preserved; (b) ESI is lost; (c) the loss results from a party's
failure to take reasonable steps to preserve it; and (d) it cannot be restored or replaced
through additional discovery. Konica Minolta Business Solutions, USA v. Lowery
Corporation, 2016 WL 4537847, *2 (E.D. Mich. 2016). Only if all four elements are
established can the Court consider sanctions under subsection (e)(1) or subsection
(e)(2). Id. at *3. These subsections have different requirements before sanctions can be
imposed and can lead to different sanctions. Id.
In considering subsection (e)(1) sanctions after finding the predicates exist, a
court must first find a party is prejudiced by the loss of information. Id. If prejudice is
found, the Court may order measures no greater than necessary to cure the prejudice. Id.
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Significantly, subsection (e)(1) does not contain an “intent” requirement; a party need
not act willfully, deliberately, intentionally, or with any objective or subjective bad
faith. Id.
Under subsection (e)(2), however, before a Court can impose the sanction of an
adverse presumption, an adverse instruction to the jury, or default judgment, it must
find that the party that caused the loss “acted with the intent to deprive another party of
the information's use in the litigation.” Id. The Advisory Committee Notes regarding
subsection (e)(2) reject cases that authorize the giving of an adverse-inference
instruction on a finding of negligence or gross negligence. Fed. R. Civ. P. 37(e)(2),
Advisory Committee Notes, 2015 Amendment. By this Motion, plaintiff seeks
sanctions under sub-section (e)(2), an adverse presumption or adverse instruction to the
jury.
The party alleging spoliation bears the burden of proof. Terral v. Ducote, 2016
WL 5017328, *3 (W.D. La. 2016); See also Martinez v. City of Chicago, 2016 WL
3538823, *24 (N.D. Ill. 2016) ( noting that "Plaintiff has failed to meet his evidentiary
burden . . .").
Response to Interrogatory Nos. 10 and 12
In light of the above factual synopsis, plaintiff has not met the "high" threshold
for the imposition of sanctions. Although Inland initially failed to provide plaintiff
with accurate information regarding the construction and modification of the stairs, it
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appears to this Court that any such deficiencies in its discovery responses was
inadvertent and that the responses were not provided in bad faith, or in any willful
attempt to abuse the judicial process. To the contrary, the record is clear that Inland
continued to investigate and supplement its responses as new information became
available. It appears to the Court that Inland was simply unaware that the steps had
been replaced until Mr. Dyer disclosed this information during his deposition. While
Inland should have interviewed Dyer prior to submitting its initial discovery responses2,
the failure to do so appears to have been an error in judgment as to who might have the
necessary information or lack of adequate communication within Inland's internal chain
of command, rather than a bad faith or purposeful attempt to hide evidence. Indeed, a
finding of bad faith or a purposeful attempt to hide evidence is belied by the fact that
Inland disclosed Dyer as a person who might have knowledge about the incident in its
response to Interrogatory Number 3 and again in its supplemental responses to
Interrogatory Number 4. [rec. docs. 38-5, pg. 5; 38-7, pg. 4; 38-12, pg. 4].
For these reasons, sanctions will not be imposed on Inland with respect to these
discovery responses.
Response to Request for Admission No. 5
Inland likewise may not be sanctioned for its failure to admit that a stair was
2

Inland's initial discovery responses indicate that only Christie Henson and Richard Jackson
provided the information utilized to respond to the discovery, and although the signature is somewhat
unclear, it appears that Richard Jackson certified the responses. [rec. doc. 38-5, pgs. 4 and 19].

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"missing" at the time of the incident. It appears to the Court that a stair was not
"missing" at the time of the incident, but rather that after the incident the set of four
stairs were simply replaced by new a set of five stairs. Furthermore, although not
requested by Request for Admission Number 5, there is nothing before this Court
supporting that any of the stairs were "broken" at the time of the incident. To the extent
that the response hinges on the proper interpretation of "missing" or "broken", given
Dyers deposition testimony and affidavit submitted in opposition tot he instant Motion,
Inland's denial is deemed by this Court as based on a “reasonable” belief that Inland
“might prevail on the matter” at trial, and as such, is not sanctionable under Rule
37(c)(2)(C).
For these reasons, sanctions will not be imposed on Inland with respect to this
discovery response.
Photographs of the Stairs
While the Court is troubled that Inland made no request to Dyer for photographs
which may have been taken by him prior to submitting its initial discovery responses,
spoliation sanctions, and more specifically, adverse inference sanctions under
subsection (e)(2) requested by plaintiff, are not appropriately granted. Plaintiff has not
satisfied his burden of demonstrating that all four predicate elements of Rule 37(e) have
been met. Thus, there is no need to reach the sub-elements of (e)(1) or (e)(2). More
specifically, in light of Dyer's ambiguous deposition testimony as to whether
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photographs were, in fact, taken, the cover letter of counsel submitting supplemental
discovery responses in which counsel chronicles the post-deposition investigation taken
by Dyer and production of his investigative file which does not contain photographs,
and Dyers' affidavit submitted to this Court in opposition to this Motion in which Dyer
confirms that , the latter two of which confirm that had there been any photographs of
the stairs, they would have been contained within his investigative file, the plaintiff has
not shown the existence of photographs which could have been lost, in the first
instance, or that should have been preserved.
Furthermore, even if this Court reached subsection (e)(2) for imposition of the
requested an adverse presumption or adverse instruction to the jury, plaintiff has not
shown the requisite intent. This Court simply cannot find that the alleged loss of the
alleged photographs was in any way intentional. To the contrary, the record before this
Court confirms that the barge containing the computer, in which the alleged
photographs were contained, sank, and there is absolutely nothing before this Court
which supports a finding the Inland intentionally sunk the barge in order to hide or
destroy this alleged evidence. Likewise, there is nothing before this Court which
supports a finding that the barge sank as a result of any bad faith actions committed by
Inland to destroy or hide evidence from the plaintiff. To the contrary, it appears that the
sinking of the barge was unrelated to this litigation.

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For these reasons, sanctions will not be imposed on Inland with respect to the
alleged photographs of the stairs in question.
Signed in Lafayette, Louisiana this 29th day of September, 2016.

________________________________
PATRICK J. HANNA
UNITED STATES MAGISTRATE JUDGE

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