Wethington et al v. Swainson
Filing
46
ORDER granting in part and denying in part 32 Motion for Sanctions. Signed by Honorable Timothy D. DeGiusti on 12/23/2015. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HOLLY WETHINGTON and
MAKENZIE WETHINGTON,
Plaintiffs,
v.
ROBERT SWAINSON, d/b/a
PEGASUS AIRSPORTS CENTER,
Defendant.
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Case No. CIV-14-899-D
ORDER
Before the Court is Plaintiff’s Amended Motion for Sanctions [Doc. No. 32],
to which Defendant has responded [Doc. Nos. 33-34]. The matter is fully briefed and
at issue.
BACKGROUND
This action stems from injuries suffered by Plaintiff Makenzie Wethington
while skydiving. She alleges Defendant was negligent in the manner in which he
trained her for the activity, the packing of the parachute, the utilization of certain
equipment, and by allowing Plaintiff to use equipment which she was not trained to
use and was inappropriate for her skill level. See Compl. ¶ 8 [Doc. No. 1]. Defendant
was served with the Complaint on September 3, 2014 [Doc. No. 5]. In October, after
Plaintiff’s lawsuit was filed, she served Defendant with discovery requests, which,
among other things, sought inspection of the parachute. However, Defendant shipped
the parachute to England that same month. To date, despite Plaintiff’s requests,
Defendant has not provided the parachute for inspection.
Plaintiff contends Defendant’s actions constitute spoilation and seeks sanctions
in the form of either: (1) entry of default judgment, (2) an adverse inference
instruction at trial, (3) an order barring Defendant from raising the defenses in his
Answer, (4) an order denying Defendant the opportunity to call or cross-examine any
witnesses at trial, and/or (5) any other relief deemed appropriate. Defendant contends
there is no evidence of bad faith as (1) his business was in the process of winding
down and all equipment was already subject to sale, and (2) the parachute was
shipped prior to receipt of Plaintiff’s discovery requests. Def. Resp. to Motion for
Sanctions at 2 [Doc. No. 33]. Defendant also states he is willing to make the
parachute available for inspection, but suggests such production be made to an
“established Oklahoma parachute center with a FAA Master Parachute Rigger who
can supervise the plaintiff’s expert.” Id. at 2-3.1 Defendant intends to bring the
parachute to trial. Id. at 3.
1
A parachute rigger is a person who is trained or licensed to pack, maintain or
repair parachutes. Sartori v. United States, 186 F.2d 679, 680 (10th Cir. 1950).
2
DISCUSSION
The Court has previously stated that:
“[T]he obligation to preserve evidence arises when the party has notice
that the evidence is relevant to litigation or when a party should have
known that the evidence may be relevant to future litigation.” Cache
LaPoudrew Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 620 (D.
Colo. 2007). A party has a duty to preserve evidence where “it knew or
should have known that litigation was imminent.” 103 Investors I, L.P.
v. Square D Company, 470 F.3d 985, 989 (10th Cir. 2006). The duty to
preserve evidence in such circumstances imposes an obligation on the
party having possession to “suspend its routine document
retention/destruction policy and put in place a litigation hold to ensure
the preservation of relevant documents.” F.T.C. v. Affiliate Strategies,
Inc., 2011 WL 2084147, at *2 (D. Kan. May 24, 2011).
Swanda Bros., Inc. v. Chasco Constructors, Ltd., L.L.P., No. CIV–08–199–D, 2012
WL 4382612, at *3 (W.D. Okla. Sept. 25, 2012).
“Where a party fails to comply with its obligation to preserve evidence, the
Court has the discretion to impose appropriate sanctions.” Id. at *4. “Discovery
sanctions lie within the discretion of the district court.” Mencia v. Allred, __ F.3d
___, 2015 WL 8599358, at *7 (10th Cir. 2015) (citing Woodworker’s Supply, Inc. v.
Principal Mut. Life Ins. Co., 170 F.3d 985, 993 (10th Cir.1999)). “‘A spoliation
sanction is proper where (1) a party has a duty to preserve evidence because it knew,
or should have known, that litigation was imminent, and (2) the adverse party was
prejudiced by the destruction of the evidence.’” Swanda Bros., 2012 WL 4382612,
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at *4 (quoting United States v. Hood, 615 F.3d 1293, 1301 (10th Cir. 2010)).
“[P]roof of bad faith is not required to support sanctions for spoliation,
including dismissal of claims or exclusion of evidence.” Id. at *5 (W.D. Okla. Sept.
25, 2012) (citations omitted); S.E.C. v. Gladstone, 301 F.R.D. 593, 644 (D.N.M.
2014) (“Bad faith is not required for a district court to sanction a party for discovery
abuses. Sanctions are proper upon a finding of willfulness, bad faith, or fault on the
part of the noncomplying litigant.” ) (citations and internal quotation marks omitted).
A spoliator’s degree of fault may vary depending on the moment of inquiry; for
instance, a party’s pro se status has been considered “perhaps a mitigating factor in
terms of the severity of sanctions.” Toppan Photomasks, Inc. v. Park, No.
13–cv–03323, 2014 WL 2567914, at *8 (N.D. Cal. May 29, 2014) (citation omitted).
The Court agrees that despite his pro se status, Defendant was aware of the
parachute’s relevance and Plaintiff’s need for its production. The Court also finds
Plaintiff’s have been prejudiced in their investigation of this case by Defendant’s
delay in producing the parachute. Nonetheless, the Court finds an imposition of
severe sanctions would be inappropriate at this time. However, the Court reserves the
issue of an appropriate sanction until after production and inspection of the parachute
is conducted. At a minimum, the Court will award Plaintiff’s attorney fees reasonably
incurred in pursuing this discovery order.
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Defendant states he still has the parachute and it can readily be made available
for inspection. Therefore, Defendant is directed to produce, at his own expense and
within forty-five (45) days of the date of this Order, the parachute to Plaintiff’s
counsel; the parties shall agree on a mutually convenient time, place, and procedure
for the production. Defendant suggests such production be made only under the
supervision of a licensed parachute rigger; however, this request, which the Court
construes as a motion for protective order,2 will not be ordered at this time, since
Defendant has not shown good cause for issuance of a protective order. The parties
may, however, agree to such a protocol, and the Court encourages them to do so. If
the parties’ efforts to agree to procedure for production prove to be unfruitful, the
Court will entertain a request for further Court intervention.
CONCLUSION
Plaintiff’s Motion for Sanctions [Doc. No. 32] is GRANTED IN PART, and
DENIED IN PART, as set forth more fully herein.
2
As a pro se defendant, the Court is required to construe Defendant’s pleadings
liberally. Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013). Pursuant to
Fed. R. Civ. P. 26(c)(1)(B), a party may request the Court to order discovery to be
conducted only under specified terms.
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IT IS SO ORDERED this 23rd day of December, 2015.
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