Tut Chany v. North Star Fishing Company LLC, et al.
Opinion
6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 TUT CHANY, Case No. C23-1639RSM
11 Plaintiff, ORDER GRANTING IN PART 12 v. PLAINTIFF’S MOTION TO COMPEL
13 NORTH STAR FISHING COMPANY LLC, 14 et al.,
15 Defendants.
17 This matter comes before the Court on Plaintiff’s Motion to Compel, Dkt. #37. 18 Defendants have filed an opposition brief. Dkt. #39. Neither party requests oral argument. 19 The parties generally agree on the facts.1 Plaintiff Tut Chany worked as a deckhand for 20 Defendants. On October 26, 2022, he was injured on the vessel ARICA, a 186-foot factory 21 trawler that fishes and processes cod, flatfish, and rockfish in the Bering Sea. He was 30 22 23 minutes into his shift. While on deck, the trawl net slid into him, severely injuring his lower 24 left leg. 25 The ARICA had a video camera pointed at the back deck where the incident happened. 26 Defendants contacted their third-party vendor who manages the video system, Fusion Marine 27 28 1 These facts come from the partie s’ briefing and are often stated without citation. See Dkts. #37 and #39. For purposes of this Motion, the Court need not cite to declarations or exhibits except as stated. Technologies, to get the footage. Contemporaneous emails clearly indicate that Defendants 1 2 attempted to get this footage because of Plaintif’s injury. This footage was delivered to 3 Defendants’ office in November 2022. 4 Plaintiff later obtained counsel who wrote to Defendants in September 2023 asking that 5 the video be preserved. Defendant’s claim manager, Cyndy Thompson, responded, in part: 6 The video footage was captured and preserved on a thumb-drive, 7 however it was reported that the video was grainy and there wasn’t 8 anything that could be viewed. Further, the operations manager who collected this information at the time no longer works for the 9 company and we are unable to locate the thumb drive at this time. 10 We will continue to look for it…. If we are unable to locate the missing thumb drive, we will not be able to go back at this point 11 and capture the footage.
12 Dkt. #38-1. Defendants’ discovery responses in this case confirm the above information. 13 Plaintiff now seeks to compel production of the video footage and asks for sanctions if that 14 footage is truly gone. 15 16 “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any 17 party’s claim or defense and proportional to the needs of the case, considering the importance 18 of the issues at stake in the action, the amount in controversy, the parties’ relative access to 19 relevant information, the parties’ resources, the importance of the discovery in resolving the 20 issues, and whether the burden or expense of the proposed discovery outweighs its likely 21 22 benefit.” Fed. R. Civ. P. 26(b)(1). If requested discovery is not answered, the requesting party 23 may move for an order compelling such discovery. Fed. R. Civ. P. 37(a)(1). The party that 24 resists discovery has the burden to show why the discovery request should be denied. 25 Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975). 26 27 The obligation to preserve relevant evidence attaches when litigation is “pending or 28 reasonably foreseeable.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). This duty “may arise even before litigation is formally commenced.” Apple Inc. v. 1 2 Samsung Elecs. Co., 888 F. Supp. 2d 976, 990 (N.D. Cal. 2012) “[T]rial courts in this Circuit 3 generally agree that, ‘[a]s soon as a potential claim is identified, a litigant is under a duty to 4 preserve evidence which it knows or reasonably should know is relevant to the action.’” Id. 5 (quoting In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060 at 1067 (N.D. Cal. 2006)). 6 Rule 37(e) is the exclusive remedy for spoliation of ESI. Fast v. GoDaddy.com LLC, 7 8 340 F.R.D. 326, 335 (D. Ariz. 2022). Rule 37(e) states: 9 Failure to Preserve Electronically Stored Information. If 10 electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party 11 failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: 12
13 (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure 14 the prejudice; or
15 (2) only upon finding that the party acted with the intent to deprive 16 another party of the information's use in the litigation may:
17 (A) presume that the lost information was unfavorable to the party; 18
19 (B) instruct the jury that it may or must presume the information was unfavorable to the party; or 20 (C) dismiss the action or enter a default judgment. 21
22 Courts in this circuit have indicated the moving party must establish spoliation by a 23 preponderance of the evidence. CrossFit, Inc. v. Nat'l Strength & Conditioning Ass'n, 2019 24 U.S. Dist. LEXIS 209319, 2019 WL 6527951, at *28 (S.D. Cal. Dec. 4, 2019) ((following 25 Ninth Circuit precedent permitting intent under Rule 37(e)(2) by preponderance of the 26 27 evidence, not clear and convincing evidence) (citing OmniGen Research v. Yongqiang Wang, 28 321 F.R.D. 367, 372 (D. Or. May 23, 2017) (“[t]he applicable standard of proof for spoliation motions in the Ninth Circuit is the preponderance of evidence”); Weride Corp. v. Kun Huang, 1 2 2020 U.S. Dist. LEXIS 72738, 2020 WL 1967209, at *9 (N.D. Cal. Apr. 16, 2020). 3 After reviewing the briefing of the parties and cited evidence, the Court is convinced 4 that the footage is gone and that compelling production would be pointless. The Court thus 5 turns to the question of sanctions. 6 The Court finds that the video footage should have been preserved in anticipation of 7 8 litigation. Defendants do not really dispute this. However, Plaintiff has failed to demonstrate 9 intent to deprive by a preponderance of the evidence so as to justify the relief available under 10 Rule 37(e)(2). Instead, it is clear from the record that Defendants acted negligently in failing to 11 maintain possession of the thumb drive, and recklessly in failing to obtain and preserve other 12 13 copies of the video footage. This occurred prior to Plaintiff’s counsel’s request for the video 14 footage. 15 Plaintiff is prejudiced by the loss. Video could have answered several relevant 16 questions at trial. Plaintiff points out that it may have shown interactions between Plaintiff and 17 his deck boss prior to the incident, and that the video would have helped the jury understand the 18 19 “setting, work and how the accident happened.” Dkt. #43 at 6. 20 The Court finds that this prejudice is not significant enough to warrant the relief 21 requested by Plaintiff. Neither party proposes “measures no greater than necessary to cure the 22 prejudice” identified above. Such measures could, e.g., include an animated reconstruction of 23 the accident produced at Defendant’s expense, or something similar. 24 25 Accordingly, having reviewed the briefing and the remainder of the record, the Court 26 hereby FINDS and ORDERS that Plaintiff Callaway’s Motion to Compel, Dkt. #37, 27 is GRANTED IN PART.
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