Boudreau v. Petit et al

Filing 172

ORDER denying 126 Motion to Compel. Plaintiff's motion to compel further responses from the Rhode Island Attorney General ("RIAG") to his First Subpoena (ECF No. 126) is DENIED. So Ordered by Magistrate Judge Patricia A. Sullivan on 9/24/2024. (Saucier, Martha)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
JASON BOUDREAU,
Plaintiff,
v.
KEVIN PETIT, et al.,
Defendants.

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C.A. No. 17-301WES

ORDER REGARDING FIRST SUBPOENA TO RHODE ISLAND
ATTORNEY GENERAL
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Now pending before the Court is Plaintiff’s motion to compel further responses from the
Rhode Island Attorney General (“RIAG”) to his First Subpoena. ECF No. 126. Non-party
RIAG timely responded to Plaintiff’s subpoena by producing all responsive documents in its
custody and control. See ECF No. 139. To that extent, the motion to compel must be denied.
In its opposition to the motion, RIAG represented that, despite a diligent search, it has
been unable to locate a “thumb drive” that it is aware was once in its custody and control. The
“thumb drive” has relevant documents in that it had been provided as the criminal discovery
turned over in October 2015 to the attorney (John Cotoia), ECF No. 126-1 at 2-3, who
represented Plaintiff in the now-dismissed state criminal embezzlement case (P2-2015-0095A),
which is the foundation for Plaintiff’s allegation that Warwick Police Officer Kevin Petit
fabricated false inculpatory evidence and suppressed exculpatory evidence. ECF No. 139 at 2-3.
On reply, Plaintiff argues that the loss of the “thumb drive” means that RIAG, a non-party, has
committed actionable spoliation. ECF No. 150 at 7. Plaintiff asks the Court to convene a
hearing regarding whether this case should be expanded to add claims of destruction/spoliation
of evidence against RIAG. Without explaining why, Plaintiff also seeks to convene a spoliation

hearing targeted at the Rhode Island State Police and the dismissed-with-prejudice State
Defendants. Id. at 7-8.
In assessing Plaintiff’s arguments based on his allegation of spoliation by RIAG, the
Court is mindful that Plaintiff has represented in other filings that Attorney Cotoia provided this
“thumb drive” directly to Plaintiff and that Plaintiff was in possession of it while he was detained
by the federal court at the Wyatt Detention Facility facing unrelated federal child pornography
charges. Plaintiff has further represented that Plaintiff was still in possession of the “thumb
drive” until he was transferred to the Bureau of Prisons presumably in 2021. See ECF No. 150 at
2-3. Thus, it is plain that Plaintiff himself was in physical possession of the “thumb drive” after
this case was pending and after Plaintiff clearly was under a duty to preserve this evidence. See
United States v. Rinaldi, 3:18-CR-279, 2020 WL 3288173, at *17 & n.12 (M.D. Pa. June 18,
2020) (although detained, pro se criminal defendant had duty to preserve evidence); Calderon v.
Corporacion Puertorriquena de Salud, 992 F. Supp. 2d 48, 52 (D.P.R. 2014) (plaintiff’s duty to
preserve relevant evidence begins when he reasonably foresees litigation; failure to preserve such
evidence constitutes spoliation). Further, in addition to Plaintiff himself, who has long been in
possession of the precise documents he accuses RIAG of losing, the Rhode Island State Police
has represented to the Court that it remains in physical possession of a hard drive with 500
gigabytes of data. See ECF No. 131.
When the Court considers that Plaintiff is accusing RIAG, which is not a party, of
spoliating evidence that he himself had been in possession of for years, may still have and has
repeatedly marshaled in this and other cases (including in the underlying embezzlement case),
the Court becomes concerned that this may be a situation where Plaintiff is well aware of what
was on the “thumb drive” that RIAG cannot locate. See generally Rinaldi, 2020 WL 3288173, at

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*17 (“[t]o now claim that evidence . . . was lost due to a delay in trial creates a convenient, but
ultimately manufactured and contrived, complaint”). At bottom, the Court finds that these issues
and concerns are too complex for the Court to launch an evidentiary hearing based solely on
Plaintiff’s reply to the pending motion to compel. Therefore, the Court declines to protract the
proceeding on the motion to compel based on this allegation of spoliation or by convening the
spoliation hearing that Plaintiff requests.
Based on the foregoing, Plaintiff’s motion to compel further responses from the Rhode
Island Attorney General (“RIAG”) to his First Subpoena (ECF No. 126) is DENIED.
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
September 24, 2024

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