Innis Arden Golf Club v. Pitney Bowes, Inc.

257 F.R.D. 334, 70 ERC (BNA) 1045, 2009 U.S. Dist. LEXIS 43588, 2009 WL 1416169
CourtDistrict Court, D. Connecticut
DecidedMay 21, 2009
DocketCivil No. 3:06cv1352 (JBA)
StatusPublished
Cited by7 cases

This text of 257 F.R.D. 334 (Innis Arden Golf Club v. Pitney Bowes, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Innis Arden Golf Club v. Pitney Bowes, Inc., 257 F.R.D. 334, 70 ERC (BNA) 1045, 2009 U.S. Dist. LEXIS 43588, 2009 WL 1416169 (D. Conn. 2009).

Opinion

RULING ON MOTIONS FOR SANCTIONS FOR SPOLIATION OF EVIDENCE

JANET BOND ARTERTON, District Judge.

In this case brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Connecticut state law, Plaintiff Innis Arden Golf Club (“Innis Arden”) seeks to recover the costs it incurred and is incurring in removing polychlorinated biphenyls (“PCBs”) from its property, along with other compensatory, injunctive, and equitable relief. Pit-ney Bowes, Inc. (“Pitney Bowes”), one of the two remaining defendants, has moved for this Court to impose sanctions on Innis Arden for spoliation of evidence. Specifically, Pitney Bowes charges Innis Arden with failing to preserve soil samples and the electronic data packages associated with the testing of those samples, and requests dismissal or an alternative sanction based on the severe prejudice caused by this spoliation. The other remaining defendant, Pateley Associates 1, LLC (“Pateley”), joins Pitney Bowes and seeks sanctions on the same grounds. After full consideration of the parties’ written submissions, and after hearing oral argument, the Court grants Pitney Bowes’s and Pate-ley’s motions and imposes the sanction set out below.

I. Relevant Background

The facts relevant to the disposition of these motions are as follows. Innis Arden is a century-old golf club located in Old Greenwich, Connecticut. It first discovered PCBs on its property in October 2004. (D’Andrea Dep., Ex. A to Pitney Bowes’s Mot. Sanctions [Doc. # 419], at 91:13 — 17.1) In January 2005, Innis Arden hired the environmental-consulting firm O’Brien & Gere (“OBG”). The engagement letter dated January 3, 2005 summarized OBG’s proposals for proceeding [336]*336with remediation on Innis Arden’s contaminated property. (OBG Letter, Jan. 3, 2005, Ex. B.) This letter, in a paragraph captioned “Cost Recovery,” demonstrates that Innis Arden contemplated the possibility of seeking recovery of its remediation costs from the responsible parties and that OBG would tailor its sampling program to that end:

Since IAGC is the innocent landowner in this case, the opportunity for seeking cost recovery for the remedial program may be appropriate. As the program moves forward, we will conduct work in anticipation of this course without incurring additional costs. Once IAGC makes a decision, [OBG] will provide whatever assistance is required to pursue cost recovery.

(Id. at 3.)

From 1967 to February 2009, Pitney Bowes occupied a property adjacent to Innis Arden and located on Barry Place.2 OBG identified the Barry Place property as a potential source of the PCBs later in January 2005. In an e-mail message dated January 20, 2005, OBG vice president Steven Roland noted: “The source appears to be from Pit-ney Bowes but if cost recovery is to be pursued, additional samples should be taken to build a more convincing case.” (Roland E-mail, Jan. 20, 2005, Ex. C at 1.) Roland elaborated on this in a letter he sent to Innis Arden a week later, explaining that additional sampling would be necessary “to identify the potential source of the PCBs” and that a “strategy for seeking cost recovery” would begin with “a technical presentation scheduled with the suspected responsible party,” followed by “legal recourse” if necessary. (OBG Letter, Jan. 28, 2005, Ex. D, at 1.) Innis Arden approved and authorized this strategy on February 1, 2005. (Id. at 4.) At least by March 2005, Innis Arden had retained counsel to advise on the cost-recovery efforts described by OBG. In a letter sent to Innis Arden on March 23, 2005, Roland noted that “additional tasks proposed to continue potential cost recovery activities include ... [assembling] a project file of relevant documents collected or prepared to-date to provide to Chris McCorm[a]ck of Tyler Cooper [and meeting] with Chris to review the details of the project documents.” (OBG Letter, Mar. 23, 2005, Ex. F, at 4.)

By July 2005, Innis Arden was actively laying the groundwork for a cost-recovery action against Pitney Bowes and other PRPs. On July 7, McCormack, who was then Innis Arden’s counsel, e-mailed his client and several others (including Roland) outlining the strategy for going after other property owners but also raising potential problems with the sample testing. (McCormack E-mail, July 7, 2005, at 1.) McCormack raised “the possibility of additional testing that will provide an idea of the age of the PCB deposits in pond sediment” — specifically, based on the presence of radioisotopes generated by atmospheric nuclear testing which ceased in the mid-1960s. (Id.) McCormack also expressed concern about the relative concentrations of PCBs on the Innis Arden and Pitney Bowes properties:

We still do not seem to have information that accounts for the high concentrations found on the Innis Arden property. The positive results on the Pitney Bowes property are at much lower levels and there does not seem to be a mechanism for PCBs at those levels to concentrate into much higher levels by themselves. Some positives in the catch basins are also at low levels and involve different kinds of PCBs, but regular maintenance may have cleaned out sediment that would have been more revealing. I don’t want to say these results are “inconclusive,” because I think they provide an excellent connection with the Pitney Bowes property. They just do not go as far as we would ideally like them to go.

(Id.) .In this message, McCormack further emphasized “the advisability of giving the ‘PRPs’ at least some notice in order to minimize the potential for them to say later that we destroyed the evidence, etc.” (Id. at 2.)

Innis Arden then identified the record owners of the nearby properties for the purpose of assigning potential responsibility for the PCB contamination. Through counsel, Innis Arden wrote to Whisper Capital, [337]*337LLC — thought to be the owner of the Pitney Bowes site on Barry Place — on August 10, 2005. (McCormack Letter, Aug. 10, 2005, Ex. Q at 1.) This letter referenced testing done on samples taken from Pitney Bowes property and asserted that “releases of PCB-eontaining material appear[ ] to have contributed ... to PCB contamination on Innis Arden’s property.” (Id.) Counsel offered “to share the data” from the analysis of samples taken from Barry Place, and advised that remediation of the Innis Arden property was to begin within two weeks. (Id. at 2.) The letter, however, makes no reference to any sampling or analysis of PCB material taken from Innis Arden’s property. Over the next month, Innis Arden heard back from several PRPs, and in e-mail correspondence counsel further cautioned about the impact of remediation on evidence relevant to the case:

We obviously wanted to give the potentially responsible parties an opportunity to request access to the Club’s property before remediation alters existing conditions. Having given the notice and received no such request, we should be in good shape to limit any claim of prejudice.

(McCormack E-mail, Sept. 2, 2005, Ex. T, at 1.)

In the Quality Assurance Project Plan developed by August 2005, OBG set out the standard operating procedures that were to govern storage and disposal of samples in the Innis Arden project:

4.9.1 ... When analysis is completed and the results reported to the client, the samples are stored for one additional month.

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Bluebook (online)
257 F.R.D. 334, 70 ERC (BNA) 1045, 2009 U.S. Dist. LEXIS 43588, 2009 WL 1416169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/innis-arden-golf-club-v-pitney-bowes-inc-ctd-2009.