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Sanctions Not Justified in Case of Missing Email Later Produced

Posted on April 14th, 2017

Missing emailIn Crow et. al. v. Cosmo Specialty Fibers, Inc. et. al., Case No. 15-05665 (W.D. Wash., Mar. 24, 2017), Plaintiffs sued Defendants for personal injury when Plaintiff Steven Crow was injured by hazardous gas released on September 27, 2012. He was at work at a truck shop, Weyerhaeuser, adjacent to a pulp mill operated by Defendant Cosmo. A tanker truck operated by Defendant TSI entered the mill at 12:10 PM and departed at 1:46 PM. The log sheet shows that the truck had delivered aqua ammonia at that time. The truck driver testified that after offloading the product, he vented it into the atmosphere, during which time he drove from the delivery site to a site within 300 feet of where Plaintiff was exposed. At 3:17 that day, an email exchanged between an employee of Plaintiff’s company and employees of Cosmo stated “receiving some complaints today from our employees. Not sure if the wind shifted or it’s hot out or??” Plaintiff’s employer conducted an internal investigation and concluded that its employees were exposed to an unknown gas release adjacent to the pulp mill on that date.

In March 2013, prior to the case filing, counsel for Plaintiffs sent correspondence to Cosmo enclosing the investigation report. Cosmo’s counsel, in a letter dated August 29, 2013, noted that employees began to register complaints that afternoon and confirmed that there was a delivery of ammonia.

During discovery, Defendant TSI requested from Cosmo all emails associated with Weyerhaeuser’s meetings or site visits to the facility following the venting incident. Cosmo produced 50 pages of discovery, not including the 3:17 email. However, other emails were produced referencing the incident. The email was not produced because it did not come up using the search terms Cosmo’s counsel suggested to Cosmo, including “ammonia” and “scrubber”. Cosmo acknowledged, however, that the email should have been included, but the hard drive or the database was corrupted. Cosmo continued to try to search for the missing email at issue. TSI filed a Motion for Spoliation Sanctions.

The court was somewhat confounded, noting that the missing email was later recovered and made available to TSI, and thus spoliation could not have occurred. TSI attempted to argue that although Cosmo may not have destroyed the email, it withheld it, which could also be a basis for spoliation sanctions. The court found no authority persuasive in that regard. The court then found that Cosmo’s actions did not amount to bad faith and that TSI had not shown any prejudice, as it had not shown how the delayed receipt of the email had affected its ability to conduct depositions or change the outcome of prior motions. The court held that sanctions were not justified.

ILS – Plaintiff ESI Discovery Experts

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