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United States ex rel Miller v. Holzmann

March 9, 2007


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge



This matter is before the Court upon consideration of the January 17, 2007, Report and Recommendation [508]. At issue in the Report and Recommendation [508] were the motions to dismiss [409, 416] by defendants Harbert International Inc. ("HII"), Bill Harbert International Construction, Inc. ("BHIC"), Harbert Construction Services (U.K.), Ltd. ("Harbert UK"), and Bilhar International Establishment ("Bilhar"). Defendants argued that the Court should dismiss the case against them in light of the government's alleged mishandling of certain documents pertaining to this case. Magistrate Judge Facciola found that the government's conduct was sanctionable. He also found, however, that pretrial dismissal was too harsh a sanction in light of the evidence put forth by the defendants. Accordingly, he recommended that this Court deny the defendants' motions to dismiss, and craft an appropriate sanction for the government's conduct at trial.

Both plaintiffs and defendants filed timely objections to the Report and Recommendation. At issue is whether the magistrate judge was correct in recommending that the most ideal point to fashion a sanction for the government's conduct would be after trial testimony occurred. For the forgoing reasons, the Court agrees with the magistrate judge, and therefore finds that the defendants' respective motions [409, 416] to dismiss are DENIED.


1. Sanctions are Appropriate

At the time he issued his Report and Recommendation, the magistrate judge noted that there were four sets of documents that were deemed lost and unretrievable, thereby giving rise to the imposition of sanctions. These documents were: the OIG file, the FOIA documents, the Coopers & Lybrand documents, and the FBI file. Of these four sets of "lost" documents, three sets--the OIG file, the FOIA documents, and the Coopers & Lybrand documents--still remain lost. The FBI file was presented to the magistrate judge for an in camera inspection recently, after which the magistrate judge issued an Order [632] granting defendants Harbert Corporation and Harbert International Inc.'s Motion [542] to Compel Production of FBI File.*fn1

Upon a de novo review of the record in this case, the Court finds that the government's mishandling of these documents at issue was certainly sanctionable. As the evidence shows, there is no doubt that the evidence contained within these sets of documents was relevant to the case. Plaintiffs object that sanctions are inappropriate in this case in light of the fact that most, if not all, of the documents that the magistrate judge found to be lost and irretrievable were likely given to the defendants over the course of discovery. Be that as it may, there is no way of knowing with any degree of certainty as to how many of those documents were provided to the defendants as a result of the government's mishandling of the documents. The government's conduct created a situation where we cannot assess exactly what or how much information was lost and what or how much information was important to the defendants' case. It would defy logic at this point to give the government the benefit of the doubt on its word alone that it gave the defendants the functional equivalent of the information contained within those documents in some form or another. The government is in little better position to make such a statement based on information or belief than the defendant is in arguing that every document destroyed was a potential "smoking gun." The documents are lost. The fact is that there is no way of verifying either contention, and this is caused directly by the government's conduct in handling these documents. Accordingly, the Court agrees with the magistrate judge's recommendation, and finds that the government's conduct in handling these documents was sanctionable. There remains the issue of which sanction is most appropriate in this case.

2. Propriety of Dismissal as a Sanction in this Matter

Defendants agreed with the magistrate judge's Report and Recommendation insofar as it found that the government's conduct was sanctionable. They part company with the magistrate judge, however, regarding his recommendation that dismissal was not the appropriate sanction for this case, and that an ideal alternative sanction would best be determined after the Court has heard trial testimony. In the defendants' opinion, the most appropriate sanction in this matter would be an outright dismissal.

As the United States Supreme Court has noted, a district court has a great deal of discretion in exercising its inherent powers to fashion an appropriate sanction. Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). Due to "their very potency, inherent powers must be exercised with restraint." Id. Though it is recognized as a sanction that falls within a court's discretion, "outright dismissal of a lawsuit . . . is a particularly severe sanction . . . ." Id. at 44-45. Moreover, the Court of Appeals has stated that "dismissal is a 'drastic step, normally to be taken only after unfruitful resort to lesser sanctions.'" Ripalda v. American Operations Corp., 977 F.2d 1464, 1466 (D.C. Cir.1992) (quoting Jackson v. Washington Monthly Co., 569 F.2d 119, 123 (D.C. Cir.1977)). It stands to reason that such a draconian sanction as dismissal should be imposed only in the most severe of circumstances, and in general only after a resort to lesser sanctions have proved ineffective.

Even if the Court was inclined to consider dismissal as a sanction in this case, it must be satisfied by clear and convincing evidence that the accused party acted in bad faith. Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1477 (D.C. Cir. 1995). A court generally allows dismissal as a sanction for destruction of documents in two situations: (1) "where the destroyed document is dispositive of the case"; or (2) "where the guilty party has engaged in such wholesale destruction of primary evidence regarding a number of issues that the district court cannot fashion an effective issue-related sanction." Id. at 1479. Upon an examination of the government's conduct, outright dismissal of the case against the defendants as a result of the alleged misconduct by the government is not an appropriate sanction in this case.

Upon an examination of the record, there is insufficient evidence to prove by a clear and convincing standard that the government--either the USAID FOIA office or the Department of Justice--acted in bad faith in handling the FOIA documents. To the contrary, it is irrefutable that the FOIA documents were destroyed as a matter of authorized record destruction under the National Archives and Administration Act schedule. Additionally, the AID FOIA officer who destroyed the documents indicated that she would not have destroyed the documents had she been aware of the pending litigation. Accordingly, there is no evidence that the FOIA officer was lying, or acted with any malicious or reckless intent in destroying these documents. Moreover, there is no evidence that the Department of Justice acted maliciously or with bad faith.*fn2

In addition, on March 6, 2007, the government filed a Vaughn Index [619] of FOIA documents that were withheld by the USAID FOIA office in order to support its claim that little was withheld and that there was a minimal negative effect on the defendants caused by the destruction of the FOIA documents. In this filing, the government indicated that thirty (30) documents were previously withheld. Of those thirty documents, three were withheld in their entirety, none of which dealt with the three contracts in question in this case. (See [619] at 2-3.) Of the remaining twenty-seven documents, fourteen related to contracts 20A and 07.*fn3 All documents were produced in their entirety. Accordingly, the Court finds that the magistrate judge's concern that the destruction of the FOIA documents eliminated a ...

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