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Jones v. Hawley

January 12, 2009

JOSEPH JONES ET AL., PLAINTIFFS,
v.
KIP HAWLEY ET AL., DEFENDANTS.



The opinion of the court was delivered by: John M. Facciola, United States Magistrate Judge

MEMORANDUM OPINION

This case is before me for resolution of Defendants' Motion for Preclusion of Evidence Not Disclosed During Discovery ("Defs. Mot.") [#19]. For the reasons stated herein, defendants' motion will be granted.

INTRODUCTION

Plaintiffs are four individual transportation security officers who work for the Transportation Security Administration ("TSA"). Class Action Complaint at 4-5. Plaintiffs claim that Kip Hawley, Administrator of the TSA, and others failed to safeguard their personnel records, in violation of the Aviation and Transportation Security Act and the Privacy Act of 1974. Id. at 2. Specifically, plaintiffs claim that the TSA lost a hard drive that contained information such as their names, social security numbers, dates of birth, payroll information, financial allotments, and bank account and routing information. Id. at 7.

DISCUSSION

Plaintiffs do not deny that, as defendants charge, they:

1. Failed to preserve and produce documents relevant to their claim, although they admitted that they had such documents in their possession.

2. Indicated that they had no responsive documents in their response to the defendants' Request to Produce Documents, although their other responses to discovery indicated that they did.

3. Never searched for documents that the defendants demanded, except for one plaintiff, who limited his search to what he described as information that was "reasonably accessible." Defs. Mot. at 5-6 (quoting deposition of plaintiff Soulia at 105).

4. Indicated that they would supplement their responses to the interrogatories but never did.

Plaintiffs resist the imposition of any sanctions for these derelictions on the grounds that, while they concede that they did not maintain and produce documents that would corroborate their claim of being damaged, defendants have no suffered any harm because "the Defendants are not hampered in any way from presenting their case by the lack of these barely relevant documents." Plaintiff's Opposition to Defendants' Motion for Preclusion of Evidence Not Disclosed During Discovery at 6.

That argument misapprehends that a fundamental purpose of discovery is to secure information that will impeach or contradict an opponent's case. Plaintiffs cannot be seriously arguing that such information does not meet the discovery standard of Rule 26(b)(1) of the Federal Rules of Civil Procedure of being relevant or likely to lead to relevant evidence. It certainly does. See Kerr v. United States District Court, 511 F.2d 192, 196-97 (9th Cir. 1975) ("In addition to discovering information pertaining to a party's case in chief, it is entirely proper to obtain information for other purposes such as cross-examination of adverse witnesses."). Since the plaintiffs have lost information that they were unquestionably required to preserve and produce, the question becomes what remedy is appropriate for the Court to impose.

The Federal Rules of Civil Procedure do not contain a provision specifying a remedy for the failure to preserve evidence but, as I noted in a previous opinion, "[i]t is settled beyond all question that at common law the destruction, alteration, or failure to preserve evidence in pending or reasonably foreseeable litigation warrants the finder of fact inferring that the destroyed evidence would have been favorable to the opposing party." Ashford v. E. Coast Express Eviction, No. 06-CV-1561, 2008 WL 4517177, at *2 (D.D.C. Oct. 8, 2008) (citing United Med. Supply Co., Inc. v. United States, 77 Fed. Cl. 257, 263 (2007)). See also Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D. C. Cir. 1995) (holding that each party has "'an obligation to preserve and also not to alter documents it knew or reasonably should have known were relevant . . . if it knew the destruction or alteration of those documents would prejudice [its opponent].'") (internal quotations omitted). "[A] court may employ an adverse inference due to a party's 'failure to preserve evidence,' even if deliberate or reckless conduct is not present." More v. Snow, 480 F. Supp. 2d 257, 275 (D.D.C. 2007) (citations omitted); Miller v. Holzmann, No. 95-CV-1231, 2007 WL 172327, at *3 (D.D.C. Jan. 17, 2007) ("It is the law of this Circuit that a party has an obligation to preserve evidence it knew or reasonably should have known was relevant to the litigation and the destruction of which would prejudice the other party to that litigation."). Before allowing an adverse inference however, "the court should consider the 'degree of negligence or bad faith involved, the importance of the evidence involved, the importance of the evidence lost to the issues at hand, and the availability of other proof enabling the party deprived of the evidence to make the same point.'" Id.

Moreover, the efficacy of the drawing of such an inference in this case has to be a function of its present status. The defendants have moved for summary judgment arguing, inter alia, that the statute under which plaintiffs proceed, the Privacy Act, 5 U.S.C. § 522 (a)(g)(1)(D),*fn1 requires that they establish that the defendants' failure to comply with the Act caused an adverse effect, but only to the extent of the actual damage they sustained. Defendants' Motion for Summary Judgment at 24. Defendants then argue that the granting of the motion that is the subject of this Opinion should lead to the preclusion of plaintiffs' presenting any evidence of ...


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