Berglund is a manufacturing planner at Boeing and he began working there in 1979. (Doug Hanna Decl. Ex. B, Nov. 15, 2010.) At the start of 2001, Berglund held the position of DGKJT Manufacturing/Engineer Planner Level 4. (Hanna Decl. Ex. B at 3.)
In his declaration, Berglund states that in late 2000, he learned one or more Boeing subcontractors were omitting a critical cleaning process in the manufacture of certain titanium alloys. (Cliff Berglund Decl. 4, Jan. 31, 2011.) Boeing denies this allegation.
In February 2001, Berglund, along with Jeffrey Biron, filed an initial lawsuit against Boeing and other defendants pursuant to the FCA. See United State ex rel. Jeffrey Biron and Cliff Berglund v. QPM Aerospace, Inc., The Boeing Company, et al.,
CV No. 01–163–KI (“Biron and Berglund
”). This original action included a claim by Biron for retaliation, but not a retaliation claim by Berglund. Although Biron and Berglund presented the Complaint to this court as a sealed document, the Clerk of the court mistakenly posted the Complaint on the court's website where it remained for a few days, available for public viewing. (David Hollander Decl. 3, Feb. 1, 2011.) Boeing learned of the lawsuit while it was posted on the Court's website and available for public view. (Berglund Decl. 7–8; Larry Payette Decl. 2–4, Jan. 30, 2011.) Berglund alleges one of his managers, Lorenzo Ontiveros, had a copy of the Biron and Berglund
Complaint on or about February 2001. (Berglund Decl. 7–8; Payette Decl. 2–4.)
Fifteen months later, on June 4, 2002, a Second Amended Complaint was filed in Biron and Berglund,
alleging Boeing retaliated against Berglund for his FCA activities.
(Calvin Keith Decl. Ex. A at 103– *1025 05, Nov. 15, 2010.) Subsequently, in May 2004, Biron and Berglund voluntarily dismissed this initial case.
Berglund filed the present action on February 15, 2002, and the Complaint contained only one claim for relief for violations of the FCA; it did not allege a claim for retaliation. (Keith Decl. Ex. B at 5–32.) Over two years later, on May 17, 2004, Berglund filed a Second Amended Complaint (“SAC”), to add a count of retaliation under the whistleblower provision of the FCA, 31 U.S.C. § 3730(h). (Keith Decl. Ex. C at 32.) Subsequently, Berglund abandoned his allegations that Boeing committed fraud on the government. (Keith Decl. Ex. G.) As a result, the only remaining claim in this case is Berglund's retaliation claim.
In his SAC, Berglund alleges numerous instances of retaliation. (Keith Decl. Ex. C at 129–139.) According to Boeing, most of these events took place before May 17, 2003, one year prior to Berglund filing his SAC adding the retaliation claim. For example, Berglund claims that “[a]fter February 2001” he “applied for and was denied managerial advancement on dozens of occasions.” (Keith Decl. Ex. C at 134.) Also, “Relator Berglund was stripped of many of his job responsibilities as a lead/Focal Manufacturing Engineering Planner.” (Keith Decl. Ex. C at 134.) Finally, Berglund further alleges in March 2002, he was “demoted to a lesser job grade with lesser responsibilities.” (Keith Decl. Ex. C at 136.)
According to Boeing, Berglund claims only two instances of retaliation that allegedly took place after May 17, 2003, and two instances in the year between May 17, 2002, and May 17, 2003. First, Berglund claims that “[s]ince at least the 3rd QTR 2002 Relator's supervisors have been monitoring Relator's work assignments are [ ] being monitored, graphed and being [sic] over scrutinized.” (Keith Decl. Ex. E at 9.) Second, he was assigned a lower retention rating in November 2002 following a yearly review. (Hanna Decl. Ex. B at 3.) Third, in April 2003, his home and vehicle were vandalized. (Keith Decl. Ex. E at 9.) Lastly, he was laid off in September 2003. (Keith Decl. Ex. C at 138.)
Berglund is a member of he Society of Professional Engineering Employees in Aerospace (“SPEEA”), a union that represents engineers and other technical professionals in the aerospace industry, including those working at Boeing. (Deborah Sternberg Decl. 2, Nov. 15, 2000.) SPEEA and Boeing negotiated collective bargaining agreements governing the terms of employment for SPEEA members. (Sternberg Decl. 2.) Berglund asserts that as a SPEEA member he cannot be terminated, suspended, or otherwise disciplined except for good cause. The collective bargaining agreement, however, sets forth a procedure for deciding which employees will be let go when layoffs are necessary. (Sternberg Decl. 3–5.)
Under these procedures, roughly once a year managers evaluate all employees, who are then ranked against all those within the same organization, skill code, or job classification and level. (Sternberg Decl. 3; Hanna Decl. 2.) The parties agree Berglund is subject to periodic reviews that should take place once each year. However, Berglund contends that at times his yearly evaluations either did not occur or took place more frequently than once a year. Employees are assigned one of three ratings, R1–R3, with R1 as the highest and R3 as the lowest. (Sternberg Decl. 3; Hanna Decl. 3.) These rankings are assigned according to a forced *1026 distribution system, which requires about 40 percent of employees to be rated R1, 40 percent to be rated R2, and 20 percent to be rated R3. (Sternberg Decl. 3; Hanna Decl. 3.)
According to Boeing, it independently evaluates whether layoffs are necessary and, if so, the scope and size. If Boeing determines layoffs are necessary, it implements the order of layoff using the ratings system. (Sternberg Decl. 5, 7.) Generally, those rated R3 will be laid off before those rated R2, and those rated R2 before those rated R1. (Sternberg 7.) Berglund concedes layoffs are designed to occur in this manner, but insists his retention rating was manipulated by Boeing to ensure he would be laid off at the first available opportunity.
At the end of 2000, just weeks prior to the filing of the Biron and Berglund
Complaint, Boeing reviewed Berglund for the calendar year 2000. In that performance review, Berglund's supervisor, Fred Reynolds, stated:
You worked on some significant initiatives this year with high success.
• Initiated testing process towards the implementation of “fatigue Technology ForceMate” method of bushing installation for our engine mounts. I know you are working on a demonstration for Jan. 2001. The benefits could be far reaching.
• Lg—elimination of (4) holes/part that are not being used on the plane. Not only will this save time in not having to put in the holes and additional steps, it will eliminate R/Ts. There are (16) holes per S/S. Status—waiting on BMT memo # .
• Sm—You met with Everett Planning and Engineering on climinating (1) Part number/configuration (65B08026–) for the outboard. This will make it cheaper and simpler through all the shops. Effective LN1278.
• Standardization of PCUs—After much work you were able to stabilize the PCUs generated for our products. This will help us in forecasting requirements and costs, and can now be used to help other business team with their PCUs. Thank you for your support.
(Second Cliff Berglund Decl. Ex. 16–1, Jan. 31, 2011.)
Berglund insists that, prior to the February 2001 filing of the Biron and Berglund
matter, his reviews and commendations demonstrated continuing improvement, increasing responsibilities and promotions. According to Berglund, his supervisors, and others, described him as supportive of the departmental and company goals of continuous improvement, promoting teamwork and use of people skills. (Second Berglund Dec. Exs. 9–11.) Examples of Berglund's commendations prior to February 2001, include: acknowledging his contribution, individually and as part of team, for going “a long way in keeping the Boeing Company's position of leadership in the aircraft industry [ ]” (Second Berglund Dec. Ex. 17)
; acknowledging his “professionalism and desire to get the job done” as being “instrumental in accelerating the development, testing and process implementation” for an outside vendor on “one of its most difficult projects ... [ ]” (Second Berglund Dec. Ex. 18); being commended for his “sincerity and professionalism” and described as “patient,” demonstrating “effective leadership skills” and “pleasurable to work with[ ]” (Second Berglund Dec. Exs. 19, 20–1); a thank you from Boeing for his “assistance in demonstrating [Boeing's]*1027 competitive edge[ ]” (Second Berglund Dec. Ex. 20–2); and, describing his “customer satisfaction” as “above average” and “improving.” (Second Berglund Dec. Ex. 15–2.)
Despite the foregoing statements during Berglund's annual reviews and commendations prior to 2001, Boeing charges Berglund's reviews prior to the filing of the Complaint in Biron and Berglund
reveal concerns with insubordination and poor interaction with coworkers. Additionally, Boeing alleges Berglund received corrective action memoranda before and after filing the action. Nevertheless, Berglund insists that, prior to February 2, 2001, there is no evidence of the type of behavioral and performance problems Doug Hanna, Berglund's direct supervisor since August 2002, attributes to Berglund; nor is there evidence Berglund was ever counseled, criticized or disciplined for the type of behavioral and performance problems attributed to him by Hanna. (Berglund Dec. 37.)
Following the events of September 2001, Boeing suffered heavy losses and was forced to implement layoffs. (Sternberg Decl. 5.) The post-September 2001 layoffs were implemented using the ratings system. (Sternberg Decl. 6–7.) All employees in Berglund's position and with his retention rating were laid off. (Sternberg Decl. 8.)
Boeing insists Berglund was assigned his retention rating in November 2002, prior to asserting his retaliation claims in this case. (Hanna Decl. Ex. B at 3.) Additionally, Berglund had been assigned an R2 rating in May 2001, and an R1 rating in March 2002. (Hanna Decl. Ex. B at 3–4.) Berglund was rehired approximately one year after he was laid off. (Hanna Decl. Ex. B at 3.) Between his rehiring in 2004, and the present, Berglund has received all three ratings at various times. (Hanna Decl. Ex. B at 1–3.) When questioned about why Boeing would at times raise his retention rating if the company were retaliating against him, Berglund testified:
Q. In this nine-year period since you've filed your lawsuit, whenever there's a retention rating that goes down, you attribute that to retaliation for your lawsuits; every time it goes up, it's either your work performance, or just the nature of the force[d] distribution process; is that correct?
A. I believe that is correct.
Q. We went through all these examples, and we can go over them again. But when I asked you about the retention drops, you attributed the cause to retaliation. And when I asked you about the retention improvements, you attributed the cause to either your performance, or the nature of the way the contract works, correct?
(Keith Decl. Ex. F (Cliff Berglund Dep. 908:6–909:7, Jan. 28, 2010) (hereinafter “Berglund Dep.”).)
Boeing maintains it is undisputed Berglund received his low ratings because he was a poor employee. For example, Hanna, Berglund's direct supervisor, wrote in a 2002 evaluation: “Never in my management experience have I encountered such consistent and intense customer dissatisfaction with an employee. I was unable to locate a single customer or peer that wanted to work with you.” (Hanna Decl. Ex. A) Several other of Berglund's supervisors and customers delivered similar criticisms. In fact, one of Berglund's yearly reviews included the following comments from various customers:
I went to his manager several months ago and asked to have him replaced. He is so bad that I have to believe he's screwing things up on purpose. No one could be this stupid.
Cliff is untrustworthy and will lie when the truth will do better.
Cliff is arrogant, condescending & argumentative.
Please move him somewhere that I will never have to deal with him again.
Cliff is extremely difficult to work with. He doesn't listen & wants to do things his way.
Cliff Berglund is very uncooperative.
Customer satisfaction is terrible!
Very difficult to work with!
I would prefer to never work with Cliff again. Please get me another planner to work with!
Comes across as very arrogant. Seems to focus exclusively on proving his point rather than honestly looking for the right answer.
Incredibly bad teamwork ... arrogant, defensive, condescending.
(Hanna Decl. Ex. C.)
Additionally, Berglund has also received numerous corrective action reports while at Boeing. For example, he has been cited for viewing sexually explicit material on his work computer on company time. (Hanna Decl. Ex. D1 at 1.) Berglund was subject to discipline for allowing a nonconformity to escape Boeing's Portland plant. (Hanna Decl. Ex. D2 at 7.) He was criticized for creating faulty planning in March 2003. (Berglund Dep. 937:21–938:18.)
Berglund alleges that, beginning in approximately April of 2001, Boeing commenced a pattern of harassment and retaliation examples of which included:
a. In or about April, 2001 Berglund received a corrective action memo from his supervisor, Reynolds. This memo accused him of failing to inform management of the effects of nitric fluoride acid etching on titanium parts. Berglund alleges in his declaration he had previously notified both Support Team Managers, Dennis Gessler and Kevin Kruger, not to accept these parts because the etching process would change the dimensions of the parts. (Berglund Decl. 9.)
b. Berglund further alleges, by the end of 2001, Boeing had significantly reduced Berglund's job responsibilities. In December 2001, Berglund's retention rating was downgraded from R2 to R3. (Berglund Decl. 12–14.)
c. Berglund alleges, in or about September 2001, Ontiveros, the Quality Assurance General Manager, twice requested he make unauthorized changes to D6–1276 (flight critical) parts, which Berglund refused to do. According to Berglund, making such changes would have subjected him to disciplinary action up to and including termination. (Berglund Decl. 10.)
d. Berglund claims, in October 2001, under the pretense of a reorganization, Berglund was removed from the position that he held for the previous 12 years, Lead/Focal Manufacturing Planner for the Engine Mount/Flap Carriage Business Team. Berglund further alleges he was divested from all responsibilities for his product focus, and no similarly situated Lead Manufacturing Planner in Portland was removed from their product focus. Berglund was reassigned responsibility for four part numbers for 747 flap carriages and two part numbers for 737 Classic spare flap carriages. The 747 parts were in only limited production and the 737 parts were not in production at all. Thus, Berglund, in essence, had nothing to do. Further, as a consequence of his reassignment *1029 Berglund was no longer performing work consistent with his Level 4 skill grade. (Berglund Decl. 12–14.)
e. On or about March 6, 2002, Berglund was informed his job title of Level 4 Manufacturing Engineer/Planner was to be eliminated and he had the choice of a downgrade to a Level 3 Manufacturing/Engineer Planner or termination, to which Berglund chose the down grade. (Berglund Decl. 27.)
f. At the time of Berglund's downgrade to Level 3, there were two other individuals at Boeing Portland with the classification of Level 4 Manufacturing/Engineer Planner, Dave Sasseen and Toby Tyler. Berglund alleges neither Sasseen nor Tyler were downgraded to a Level 3 Manufacturing/Engineer Planner and, rather, both retained their Grade Level 4 and were given positions in a newly created job classification of Product Manager. (Berglund Decl. 28.)
g. Berglund alleges he asked his managers whether there was any more Level 4 work in Portland and was told “yes,” but it was to be performed by individuals with the “Product Manager” classification. (Berglund Decl. 27.)
h. Berglund alleges his complaints to Susan Miller in Boeing Portland Human Resources have gone unanswered. (Berglund Decl. 30–32.)
i. In August 2002, Hanna became Berglund's manager. Berglund admits he received a “scathing review” from Hanna at the end of 2002. Berglund charges, however, that Hanna's review was not constructive and was a personal attack intended to lower Berglund's morale and encourage him to quit his position at Boeing. Further, Berglund claims Hanna's 2002 review was not in Boeing's usual format, which would allow him an opportunity to address the criticisms and provide his thoughts and feedback. Additionally, Berglund claims neither Hanna nor any previous supervisor ever counseled or disciplined him for the type of behavior set out in the “Customer Comments re: Cliff Berglund Performance” document. Following the November 2002 review by Hanna, Berglund's retention rating was downgraded from an R2 to and R3, which was raised to an R2 based on Berglund's seniority. (Berglund Decl. 35–38; Hanna Decl. Ex. C.)
j. Berglund remained in that position until July 19, 2003, when Boeing issued a Workers Adjustment and Retraining Notification (“WARN”) advance notice of termination effective September 19, 2003. (Berglund Decl. 40.)
Berglund was rehired approximately one year after he was laid off. (Hanna Decl. Ex. B at 3.) He was recalled pursuant to a provision in the collective bargaining agreement allowing those laid off to be eligible for priority recall if openings become available, even though Boeing had the option of taking him off the priority recall list. (Sternberg Decl. 9.)
2. Berglund was Treated Differently and Worse than Similarly Situated Employees.
Boeing explains even Berglund admits that following the post–9/11 downturn in the aviation industry, all employees in Berglund's position and with his retention rating were laid off. Further, Boeing contends Berglund must show he and his coworkers “were similarly situated in all relevant respects and yet [ ]he received a more severe punishment for committing substantially the same offense.” Russell v. TG Missouri Corp., 340 F.3d 735, 745 (8th Cir.2003). According to Boeing, Berglund cannot make such a showing. Of the four employees who, in March 2002, were assigned to a new position during a redeployment of work due to the poor economy—Toby Tyler, Dave Sasseen, and Chris Carpenter—were manufacturing planners like Berglund. However, none of those three received poor reviews, and all were designated R1's, the highest rating possible. The fourth, Rick Kummerle, was an operation program analyst, an entirely different position than Berglund's. Boeing explains that because those four were not similarly situated with Berglund, Boeing's treatment of them is not evidence of pretext.
In fact, Boeing contends Berglund was treated similarly to other similarly situated employees during his 2002 performance review. For example, Bruce Allison, like Berglund, reported directly to Hanna in 2002, and also received a host of negative comments from his customers during the review. Allison, like Berglund, was a Level 3 Manufacturing Planner, and also received an R3 retention rating after his review. Similarly, Allison was laid off in September 2003.
1. Altered Emails
Boeing charges Berglund altered email messages and lied about doing so while under oath at deposition. During discovery, Berglund produced hundreds of pages of email messages to Boeing he claimed were the same email messages provided to the government during its false claims investigation. (Calvin L. Keith Decl. Supp. Mot. for Sanctions (“Keith Sanctions Decl.”) 2, Ex. A at 3, Feb. 4, 2011.) Among these emails are Berglund's exchanges with co-workers in late 2001 and early 2002, immediately before Berglund filed this case in February 2002, in which they discuss at length Boeing's compliance with internal manufacturing specification BAC 5008. Boeing represents that it compared Berglund's email messages to those produced by Boeing employees and found certain key emails key appeared repeatedly but differed in content.
The record proves Boeing's charge. One example is an email string that occurred between November 26, 2001, and December 6, 2001. The version of that string Boeing produced during discovery is Exhibit B to the Keith Sanctions Declaration, and the version of that string Berglund produced during discovery is Exhibit C to the Keith Sanctions Declaration. A comparison of the two strings reveals that although both versions bear the same Microsoft Outlook header, the content of the two versions differs significantly. For example, on November 26, 2001, a Boeing engineer named Eunkyong (“Kris”) Lim sent an email to several people in which she suggested manufacturing plans prepared by Berglund did not comply with BAC 5008. Berglund responded to Lim's email the same day Lim sent it. The version of Berglund's response that Boeing produced includes this sentence:
[H]owever, as a result of demonstrated process results and data collected and submitted to [Boeing Materials Technology] which showed no burns over a specified period, BAC 5008 was revised to allow the use of “Castrol Syntilo 9913 coolant” and the nital etch inspection operations were removed.
(Keith Sanctions Decl. Ex. B at 3.) The last sentence of the version Boeing produced ends with this sentence:
*1046 However, “all” of these surfaces have “additional material removed
” outside of the HMC cell to achieve finish dimensional surface requirements.... This removal of material excess meets the engineering spec requirements of BAC 5008 & BAC 5436 which negates the requirement to nital etch inspect these surfaces as you have requested.
(Keith Sanctions Decl. Ex. B at 3 (emphasis in original).)
Berglund's version of the same message in that email string is different in several material respects. First, the entire first sentence above is replaced with “In Nov. 1998, the nital etch inspection operations were removed.” (Keith Sanctions Decl. Ex. C at 3.) Second, the rest of the sentence was has been deleted. Third, the last sentence of Berglund's version reads:
However, ‘only the holes' of these surfaces, have ‘additional material removed
’ outside of the HMC cell to achieve finish dimensional surface requirements.
(Keith Sanctions Decl. Ex. C at 4 (emphasis in original).) The critical language in the original passage—Berglund's statement that the “removal of material excess meets the engineering spec requirements of BAC 5008 & BAC 5436”—is missing. The effect of Berglund's changes to the original version of this message is to convert his original opinion that Boeing is complying with BAC 5008 into the contrary view that Boeing is failing to comply with BAC 5008—a view which, if Berglund actually had voiced it in November of 2001, supports Berglund's retaliation claim because it would be evidence that he reported Boeing's noncompliance in 2001.
Another example appears later in the same email string. On November 28, 2001, Berglund wrote to Melvin Nilsen, a Boeing engineer, seeking assistance in responding to Lim's concerns. In Boeing's produced version of that message, Berglund's message ends:
I feel that we are in spec and ENGR [drawing] compliance
with the current processing which has been in place since your approval of this coolant in 1998.... It would be a costly endeavor to change processing of these parts at this time.
(Keith Sanctions Decl. Ex. B at 2 (emphasis added)). In Berglund's version of that same message, the last sentence reads:
(Keith Sanctions Decl. Ex. C at 2 (emphasis added).)
Once again, the original version of a contemporaneous email message contradicts Berglund's retaliation claim. Berglund had opined at the time of the events in question that Boeing was within specification and had achieved engineering “compliance.” However, Berglund's version of that same email exchange contains Berglund's “opinion” that Boeing's engineering drawings conflict with the required specification, and omits Berglund's contemporaneously expressed concerns about the costs to change the processing of the parts at issue. Also again, the changes in Berglund's version convert his contemporaneous statements and opinions supporting the processing of the parts at issue into a warning that Boeing is disregarding required specifications. The effect of Berglund's alteration of the email string is to give support to his retaliation claim.
Boeing points out that only a side-by-side comparison of similar email strings revealed these inconsistencies; there are *1047 no notes or annotations identifying or explaining them. (Def.'s Mem. Sanctions 4.) Boeing thus explored the unexplained discrepancies with Berglund at his January 2010 deposition. Specifically, Boeing's counsel showed Berglund the second version of the Lim–Berglund–Nilsen string that supported claims for fraud and retaliation. (Keith Sanctions Decl. Ex. D at 75 (hereinafter “Berglund Dep.”).) Boeing's counsel specifically asked Berglund whether that version of the Lim–Berglund–Nilsen string was the “true and correct copy” of the string. After taking time to review the email string, Berglund responded “[y]es, it is.” (Berglund Dep. 75:7–75:18, Jan. 26, 2010.) Boeing's counsel then confronted Berglund with the original version of the same string; Berglund acknowledged the original version contradicted his fraud and retaliation claims, and he admitted he had “changed” some language and “deleted” other language in the original version to support his claims. (Berglund Dep. 80:7–90:15.) Berglund attempted to explain his various alterations to the email string:
What these two [versions of the same email string] that you've placed here before me represent is a string of e-mails that I sent back and forth between myself, Kris Lim, members of [Boeing Materials Technology, like Mr. Nilsen], and—look and see if there was anyone else here—where the facts of the use of WY4 coolant were in question is, for a period of time we were in compliance and/or not in compliance. And as I forwarded these emails, when you take and press the forward button in exchange, you have the opportunity to take and edit and so change. And as information became available to me that contradicted what I had previously written, these were changed to take and reflect what I knew to be the best and correct information at the time and most accurate.
(Berglund Dep. 81:21–82:8; see also
92:19–92:22 (“I used that practice ... when I was doing investigations to take and reflect the—the most accurate, you know, information at the time as I knew it when I forwarded to—to new recipients.”).)
During his deposition, Berglund admitted he altered several other email messages. (Berglund Dep. 121:9–123:10, 468:25–471:21, 476:1–483:7.) He insisted he made all of these alterations no later than December 2001, and that he had informed the government about his “editing” of email messages. (Berglund Dep. 93:1–4 (“Q: Did you tell the government that you changed these emails? A: Yes, I believe at some point in time that was conveyed to them.”).) However, seven months later, in August 2010, Berglund contradicted his deposition testimony in his answers to Boeing's interrogatories by admitting he did not tell the government he altered email messages and did not inform Boeing he altered email messages. (Keith Sanctions Decl. Ex. A at 3.)
The record also demonstrates Berglund lied when he represented he made all of his email alterations at or near the time the messages were written and prior to any litigation. In January 2002, Berglund made his decision to file this lawsuit (Berglund Dep. 55:23–58:9), and he filed his initial complaint the next month, on February 15, 2002. According to a forensic investigation of Berglund's work computer, however, Berglund altered the Lim–Berglund–Nilsen string discussed above on at least two occasions after
January 2002. (Del Valerio Decl. 6(a)-(n).) The same forensic investigation also established Berglund altered a July 7, 1998, message written by Christer Hellstrand years after Hellstrand wrote the message. (Valerio Decl. 6(o
3. Discarded Hard Drives Pre–January 2010
During his January 2010 deposition, Berglund admitted he discarded two hard drives from his home computer, purportedly because they malfunctioned. (Berglund Dep. 958:21–959:11 (“Unfortunately, we've lost that hard drive twice [.] It's been replaced twice.”).) Berglund never explained why the two hard drives failed or when they failed, other than to say both failures occurred after February 2007, and the second failure occurred “midyear 2008 to the best of my memory.” (Keith Decl. Ex. A at 3.) Berglund has not suggested he made any effort to recover data from the hard drives after they failed, nor does it appear he attempted to preserve the hard drives for Boeing's inspection.
Boeing claims “[t]here is no doubt that [Berglund] destroyed relevant and discoverable evidence by discarding those two hard drives.” (Def.'s Mem. Sanctions 7.) As evidence of this, Boeing points out Berglund used his home computer both to search for jobs and do some work for his wife's business after he was laid off in 2003, and prior to being rehired by Boeing in 2004. Berglund testified he saved documents related to those activities on his home computer. (Berglund Dep. 958:21–961:18.) According to Boeing, it intended to use such documents to show Berglund failed to mitigate damages arising from Boeing's alleged retaliation; thus, Boeing expressly requested that category of documents during discovery. (Keith Decl. Ex. E at 9–10 (seeking “[a]ll documents that refer or relate to your search for employment between the time your furlough by Boeing began in September 2003 to the time you were rehired by Boeing in September 2004,” as well as all documents related to Berglund's employment during that time).)
Further, there is some evidence the pre–2010 hard drives contained other relevant information. An unsolicited third party provided to Boeing an email message sent to them from Berglund on January 7, 2008. In the email message Berglund calls Boeing “stupid” for rehiring him in 2004, and claims the only remaining issues in this case are whether he will remain with Boeing after a settlement, and whether that settlement will be “7 figures or 8 figures”. (Keith Decl. Ex. F.) Berglund never produced this email in response to Boeing's discovery requests. (Keith Decl. Ex. E at 8 (seeking “[a]ll documents that refer or relate to your communications with any person or entity, other than the U.S. Government, referring or relating to any matter alleged in the Complaint or this lawsuit”); Ex. E at 7 (seeking “[a]ll documents that you prepared, including diaries, calendars, ‘daytimers,’ planners, date books, logs, drafts, memoranda and *1049 notes, that refer or relate to any matter alleged in the Complaint or this lawsuit”).)
Boeing confronted Berglund with the January 7, 2008, email message at his deposition. Berglund testified he did not recall the document and he did not know whether it existed on his home computer. (Berglund Dep. 183:11–15, 189:2–12, 189:25–191:3.) In yet another turn-about of his sworn testimony, Berglund subsequently admitted he wrote the email (Keith Sanctions Decl. Ex. G at 3.) Boeing asserts Berglund likely sent the January 7, 2008, email from his home computer. (Valerio Decl. 7 (explaining the message does not exist on Berglund's work computer).)