Zane Johnson, Plaintiff, v. American Honda Motor Company, Inc., Defendant CV 10–126–M–JCL Signed May 13, 2013 Counsel Vincent John Pavlish, Martin W. Judnich, Judnich Law Office, Mathew M. Stevenson, Stevenson Law Office, Missoula, MT, for Plaintiff. Paul G. Cereghini, William F. Auther, Bowman and Brooke LLP, Phoenix, AZ, Gerry Fagan, Moulton Bellingham PC, Billings, MT, for Defendant. Lynch, Jeremiah C., United States Magistrate Judge ORDER *1 Defendant American Honda Motor Company, Inc. (“Honda”) has filed a Renewed Motion for Attorney's Fees and Expert Costs as a Sanction for Plaintiff's Spoliation of Evidence. For the reasons set forth below, Honda's motion is denied. I. Background[1] Johnson commenced this products liability action in June 2010, approximately three years after he crashed his 2007 Honda TRX 420FE all-terrain vehicle (“ATV”). Johnson alleged that the ATV's steering locked up just before the accident, which caused him to drive off the road as he tried to negotiate a right hand turn. Several weeks after the accident, Johnson's counsel, Martin Judnich (“Judnich”) retained mechanical engineer Robb Larson (“Larson”) to determine whether a mechanical failure was responsible for the steering problem Johnson described having experienced just before the crash. Dkt. 133–1. Larson emailed Judnich on August 28, 2007, to make sure Judnich was “confident that any required dis-assembly wouldn't affect subsequent legal action.” Dkt. 133–1, at 2. Larson asked whether “notes and photos would be sufficient to deflect any possible future criticism of this process of investigation?” Dkt. 133–1, at 2. Judnich responded by saying he did not think they had “any other choice than to photograph every step in the process from beginning to end.” Dkt. 133–1, at 2. Judnich advised Larson that he was “confident with your background that your procedures and work will be sufficient as long as they are documented and photographed.” Dkt. 133–1, at 2. Once the ATV had been delivered to Larson, he emailed Judnich again and explained that while he would thoroughly photograph the disassembly process, he was still concerned about future litigation and suggested videotaping “all disassembly work.” Dkt. 133–2. Judnich rejected that idea, however, and advised Larson that he thought “photos are simply the only way to go.” Dkt. 133–2. Larson began the disassembly process, in late 2007 or early 2008—long before Honda was first given an opportunity to examine the ATV in September 2008. Dkt. 131, at 15. Larson thereafter examined the ATV, disassembled the right front constant velocity joint (“CV joint”), and performed various tests on the CV joint and axle shaft. Based on Larson's conclusions, Johnson's theory of the case was that improper assembly of the ATV's right front axle shaft and constant velocity joint (“CV joint”), and the metal-on-metal contact that resulted during vehicle operation, caused a difficult and unpredictable steering response. The case was originally set to go to trial in April 2012. On March 2, 2012, approximately five weeks before the scheduled trial date, however, Honda received a supplemental disclosure from Johnson. That supplemental disclosure included a set of photographs taken by Larson during his disassembly and testing. Larson indicated that he had not produced the photos in response to prior requests because he was unable to access his computer hard drives. Larson subsequently found several of those photos in backup files on his laptop, and produced them on the disc that Honda received on March 2, 2012. *2 While most of the photographs on the disc were duplicative of those already produced, there was one new photo that showed what looked like dirty duct tape covering the ATV's right front inboard CV joint housing. To Honda, the newly disclosed photo suggested that the ATV had been operated for a significant period of time before the crash without the right front drive shaft in place. If so, that would have been inconsistent with Larson's expert opinion, which was that metal-on-metal contact between the improperly installed right front axle shaft and CV joint had caused a difficult and unpredictable steering response in the ATV. Honda then asked Johnson to produce Johnson's actual computer hard drives. Dkt. 127, at 9. On April 3, 2012—the day after the final pretrial conference and just one week before trial was set to begin—Johnson produced three of Larson's computer hard drives. Honda searched the hard drives and found several other previously undisclosed photos of the ATV taken by Larson both prior to and during the disassembly process. All of these late-disclosed photos were taken in January, February and March of 2008, several months before Johnson first produced the ATV for inspection by Honda. Honda argued that several of the photographs provided additional evidence suggesting that the right front drive shaft had not been on the ATV at the time of the accident. One photo, for example, showed the right outer CV joint filled with grease and other accumulated material, which Honda argued was consistent with the ATV having been operated for a prolonged period of time without the right front drive shaft present. But by the time the ATV was first produced for inspection by Honda in September 2008, Larson had removed and discarded much of this material, including the duct tape on the inboard CV joint housing. On Honda's motion, the Court continued the trial until October 2012 in order to give Honda the opportunity to redepose Larson and have its experts analyze the recently disclosed hard-drives and photographs. With those tasks accomplished, Honda filed a motion for case-dispositive spoliation sanctions in July 2012. Honda argued that Johnson, acting through his agents Larson and Judnich, had spoliated critical evidence that would have allowed it to conclusively rebut Johnson's theory of the case and prove that the right front axle was not in place on the vehicle at the time of the accident, and that the ATV had been operated in that condition for a significant period of time before the crash. Honda asserted that Johnson spoliated evidence by: (1) disassembling the ATV, including removing bolts, without adequately documenting the process and following generally accepted forensic practices; (2) removing and disposing of the duct tape before Honda had a chance to examine and test it; (3) removing grease and material from the right front CV joint and axle without giving Honda an opportunity to inspect and analyze it, and; (4) allowing the ATV to rust and corrode before Honda had a chance to inspect the vehicle. Dkt. 126, at 13–18. Honda asked the Court to dismiss Johnson's claims as a spoliation sanction, and also requested an award of attorney's fees and expert costs. On September 21, 2012, the Court convened an evidentiary hearing to address Honda's motion. With the October 22, 2012, trial fast approaching, the Court issued a summary ruling on Honda's motion. Dkt. 152. The Court implicitly found based on the testimony and evidence presented that Johnson had spoliated evidence as alleged. The Court denied Honda's request for the case dispositive sanctions, however, and instead settled on the following sanctions to be imposed at trial: *3 (1) Evidence of the spoliation will be admitted; (2) American Honda shall be allowed to present, at trial, the expert opinion testimony it presented at the evidentiary hearing regarding the impact which the spoliation had on American Honda's ability to address the issue of causation; (3) The Court shall give the jury an appropriate adverse inference instruction; and (4) The only expert opinion testimony Johnson will be allowed to elicit at trial will be that of the expert witnesses identified on Plaintiff's ‘will call’ witness list attached to the original final pretrial order filed April 2, 2012. Dkt. 152, at 2. In doing so, the Court simply indicated it had considered the relevant factors under Halaco Engineering Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988) and Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006), and explained that it would “detail its analysis in an opinion to be issued at a later date.” Dkt. 152, at 2. The case went to trial shortly thereafter, and eventually ended in a deadlocked jury. Honda then moved to strike Larson's expert trial testimony and filed renewed motions for judgment as a matter of law and for spoliation sanctions. Honda's motion for spoliation sanctions included a renewed request for attorney's fees and costs. Dkt. 246. On January 31, 2013, the Court granted Honda's motion to strike Larson's testimony on the ground that it did not meet the reliability and relevance requirements of Fed. R. Civ. P. 702. Dkt. 264. Because that ruling was dispositive of the entire case, the Court found that Honda's request for case-terminating sanctions was moot and declined to address it any further. Dkt. 264 n.5. At the Court's direction, the Clerk of Court entered final judgment in Honda's favor. Dkt. 265. Honda has since filed a renewed motion for attorneys fees and costs as an additional spoliation sanction. Honda maintains that it necessarily incurred significant attorney's fees and expert witness costs as a direct result of the spoliation of evidence, and asks the Court to award those fees and costs as an additional sanction. Johnson argues as a preliminary matter that Honda's renewed motion is moot in light of the Court's order striking Larson's testimony and dismissing his case. While it is true that the Court found Honda's request for case-terminating sanctions moot because Honda was entitled to judgment as a matter of law on other grounds, it said nothing about the issue of attorney fees and costs. As Honda correctly points out, the Court expressly reserved ruling on the issue of attorney fees and costs prior to trial. Thus, the question of whether Johnson should be required to pay Honda's attorney fees and costs as an additional spoliation sanction has yet to be addressed. This means that Honda's renewed motion asking for those fees and costs is not moot. Before it can determine whether Honda's attorney fees and costs should be imposed as an additional spoliation sanction, the Court must first explain why it chose the spoliation sanctions it did prior to trial, and why those sanctions were adequate under the circumstances. Thus, the date has finally come for the Court to do what it previously promised and “detail its analysis” of the Halaco and Leon factors. Dkt. 152. Only upon doing so can the Court then turn to the question presented on Honda's current motion, and determine whether additional sanctions in the form of attorney fees and costs are now appropriate. II. Legal Standards *4 “There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who ‘fails to obey an order to provide or permit discovery.’ ” Leon v. IDX Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006). Honda focused on the court's inherent authority as the basis of its request for dispositive sanctions, but argued that Rule 37 provided an equally viable, alternative basis for dismissing Johnson's claims. Dkt. 126, at 8 n.1. The considerations for imposing sanctions under the court's inherent power and Rule 37 are much the same. See Peschel v. City of Missoula, 664 F.Supp.2d 1137, 1141 (D. Mont. 2009). Sanctions are appropriate when a party destroys evidence that it knew, or reasonably should have known, was potentially relevant to the litigation. Peschel v. City of Missoula, 664 F.Supp.2d 1137, 1141 (D. Mont. 2009). To sanction a party for destroying relevant evidence, a court may: (1) order the exclusion of certain evidence; (2) admit evidence of the circumstances surrounding the destruction of evidence; or (3) instruct the jury that it may draw an adverse inference against the spoliating party. Peschel, 664 F.Supp.2d at 1142. In addition, “[d]ismissal is an available sanction when ‘a party has engaged deliberately in deceptive practices that undermine the integrity of the judicial proceedings' because ‘courts have inherent power to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.’ ” Leon, 464 F.3d at 958 (quoting Anheuser–Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995)). Drawing from Leon and Halaco Engineering Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988), this Court has held that the following factors are to be considered before dismissal can be imposed as a sanction for the spoliation of evidence: (1) the presence of extraordinary circumstances; (2) willfulness, bad faith, or fault by the offending party; (3) the relationship between the misconduct and the matters in controversy; (4) the risk of prejudice to the party seeking sanctions; (5) the public policy favoring disposition of cases on their merits, and; (6) the efficacy and availability of lesser sanctions. Peschel, 664 F.Supp.2d at 1142. III. Honda's Pretrial Motion for Dispositive Spoliation Sanctions Honda submitted several supplemental expert reports in support of its pretrial motion for case-dispositive sanctions, and elicited expert testimony at the evidentiary hearing to address the primary factors under Halaco and Leon. Honda's mechanical engineering expert, Dr. Graeme Fowler, was the first to testify and began by describing exactly what evidence had been spoliated. Based in large part on his review of the late-disclosed photographs, Dr. Fowler explained that Larson had evidently (1) removed dirt and mud from the ATV; (2) removed and discarded surface grease and material from the outer CV joint; (3) changed the position of the race inside the cage of the outer CV joint; (4) allowed the outer CV joint to rust; (5) removed and discarded duct tape from the inner CV joint; (6) removed and discarded grease from the inner CV joint; (7) wiped dirt from the outside of the inner CV joint housing; (8) removed and reassembled nuts, bolts, and other fasteners on the undercarriage of the ATV, and (9) removed and discarded grease from the inboard and outboard ends of the axle shaft. Tr. 160, at 25. Dr. Fowler then testified as to the significance of the physical evidence that had been lost. For example, he stated that because Larson had removed and discarded the duct tape and grease depicted in the photos, it was not possible to test those materials for the purpose of determining whether the right front axle shaft had been present at the time of the accident. Dkt. 160, 30–31. And because Larson had removed and reassembled various nuts and bolts on the vehicle, Dr. Fowler explained that it was no longer possible to determine whether someone had disassembled the ATV prior to the crash and perhaps removed the right front axle shaft. Dkt. 160, at 33. *5 After the trial was vacated in April 2012, Johnson developed a theory to explain the presence of accumulated debris and material in the grease on the outer CV joint as shown in Larson's photographs. He theorized that dirt and other material may have been “mashed” into the CV joint as the ATV rolled down the hill during the crash. Dkt. 128, 12. Dr. Fowler rebutted this explanation, however, indicating that it was not plausible given the ATV's design and the protected location of the CV joint. He further testified that the surface of the hillside was such that the ATV's front assembly would not have become buried to the depth required for the CV joint to become contaminated. Dkt. 160, at 47–50; Dkt. 128, at 12. Johnson developed a different theory to explain the dirt encrusted condition of the duct tape shown in Larson's photograph. Johnson's brother-in-law, Rick Harrison, testified at his April 17, 2012, deposition that he placed the duct tape on the ATV the day after the accident. Dkt. 130–4, at 4. Johnson argued that the duct tape must have come to look like it did in Larson's photograph, not because it had been driven in that condition for a long time, but as the result of being transported more than 400 miles on an open trailer from Zortman to Stevensville, Montana. Dr. Fowler conducted testing to rebut this theory as well. After trailering an exemplar ATV with duct tape on the inboard CV joint housing along the same route from Zortman to Stevenville, Dr. Fowler observed that “the quantity of material visible on the exemplar duct tape” was “demonstrably less” than that on the duct tape depicted in Larson's photo. Dkt. 129–1, at 20–21. Dr. Fowler thus concluded that “the appearance of the duct tape [on the] CV joint housing in Mr. Larson's photograph was not the result of transport post-accident.” Dkt. 129–1. Dr. Fowler instead concluded “that the right front axle shaft was not present in Mr. Johnson's ATV at the time of his accident,” and that the ATV had likely “seen considerable use before the accident without the axle shaft present.” Dkt. 129–1, at 23. Dr. Fowler also indicated, however, that “[t]he alteration of the components and destruction of the grease and duct tape have prevented experts for the defense from even more conclusively affirming this finding.” Dkt. 129–1, at 23. Honda's forensic expert, Craig Reinmuth, was the next to testify. He searched Larson's computer hard drives for additional photographs and files relevant to the litigation, and examined the hard drives to determine if and when their contents had been accessed. Dkt. 160, at 91. Reinmuth determined that the hard drives were operational and he had no particular difficulty connecting the drives and viewing their contents. Dkt. 132–2, at 7. Reinmuth testified that the nine late-disclosed photos Honda considered critical to its defense had been accessed six times in the weeks just prior to and after Larson completed his November 28, 2010, expert report. Dkt. 16, at 95. Reinmuth indicated that the duct tape photo had been accessed once, on December 12, 2010. Dkt. 160, at 95. Metallurgical engineer Keith Cline was asked by Honda to consider whether Larson's investigative procedures “conformed to the commonly accepted standard of care for forensic investigations.” Dkt. 133–3, at 2; Dkt. 160, at 111. Cline testified that they did not, and explained that Larson had not followed the generally accepted minimum standards for the collection, preservation, and handling of forensic evidence. Dkt. 160, at 115. Cline noted that Larson was familiar with the applicable standards, but nonetheless failed to adhere to them during the course of his forensic investigation. Dkt. 160, at 123; Dkt. 133–3, at 5–11. *6 Metallurgical engineering expert Dr. Michael Stevenson testified next, and explained how the grease Larson disposed of could have been analyzed if it had been properly preserved. Tr. 160, at 5. Dr. Stevenson explained that soil samples taken from the accident site and surrounding areas were chemically different. Dkt. 160, at 134. He testified that if Honda had been able to analyze the grease in and on the CV joint, it may well have been able to tell where any soil contaminants had come from. Dkt. 160, at 133. Dr. Stevenson's supplemental report put it this way: “Had proper evidence handling procedures and generally accepted practices in failure investigation been followed, additional physical evidence would have been available for more precise determination of the sequence and timeline in which Mr. Johnson's ATV came to the condition initially presented to Honda representatives.” Dkt. 136, at 44. Honda's final witness of the day, Dr. Robert Caligiuri, focused on the prejudice caused by the loss of evidence. He essentially testified that Larson's failure to adhere to good forensic engineering practices meant that Honda could not definitively answer several critical questions in the case. For example, Dr. Caligiuri explained that the duct tape and inner CV joint grease may have helped Honda identify when the right front axle “shaft was no longer in its position on the right front drive.” Dkt. 160, at 151. And because Larson had removed and reassembled various nuts, bolts, and fasteners, Dr. Caligiuri testified that Honda could not definitely determine what work had been done on “the ATV and, in particular, to the right front drive mechanism prior to driving it on the day of the incident.” Dkt. 160, at 152. Consistent with his testimony at the evidentiary hearing, Dr. Caligiuri wrote in his supplemental report that while Honda might have been able to use other evidence to indirectly answer the key factual questions in the case, such as whether the right front output shaft was installed in the ATV at the time of the accident, those critical questions “likely could have been directly answered through the examination of the destroyed evidence had Mr. Larson not failed to follow generally accepted forensic practice.” Dkt. 134–1, at 8. As the evidentiary hearing drew to a close, Johnson did not dispute that Larson had discarded, or spoliated, the physical evidence described by Dr. Fowler. Dkt. 160, at 249–52. Johnson instead argued that Larson had not acted willfully or with bad faith, and took the position that Honda had not been so prejudiced by the loss of the evidence as to warrant dismissal as a sanction. 1. Willfulness, bad faith, or fault by the offending party Before imposing a drastic sanction like dismissal, the court must find that the spoliating party acted with “willfulness, fault, or bad faith.” Leon, 464 F.3d at 958. “A party's destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon, 464 F.3d at 959. The concept of “fault” is distinct from both “willfulness” and “bad faith,” and may serve as an independent basis for dismissal. Peschel, 664 F.Supp.2d at 1146–47. At a minimum, the complaining party must present evidence of recklessness. Peschel, 664 F.Supp.2d at 1146–47. Under any of these standards, however, dismissal is only appropriate when the spoliating party has “engaged deliberately in deceptive practices that undermine the integrity of the judicial proceedings.” Leon, 464 F.3d at 958. Honda argued that evidence of Judnich's “wilfullness, fault, or bad faith” can be found in the email exchange he had with Larson just weeks after the accident. It was during that exchange that Larson first advised Judnich he was concerned about disassembling and testing the ATV without giving notice to future litigants. Judnich nonetheless instructed Larson to proceed, but with the understanding that Larson would document and photograph his procedures and work. Dkt. 133–1, at 2. Honda has since pointed to evidence that Larson did not in fact adequately document his work and failed to adhere to the commonly accepted standard of care for forensic investigations. *7 Judnich's decision to allow Larson to begin disassembling the ATV without notifying Honda or even videotaping his activities was seriously misguided, and could even be characterized as grossly negligent. But there was no evidence that Judnich engaged deliberately in any deceptive practices aimed at undermining the integrity of these proceedings. The Court concluded there was no evidence of purposeful wrongdoing on Judnich's part, and concluded that Judnich's conduct was not so culpable as to justify dismissal. The Court reached much the same conclusion when it came to Larson's conduct. Although the evidence and testimony established that Larson was negligent, even sloppy at times, in carrying out his forensic investigation, it was not at all clear that he deliberately withheld relevant photographs or mishandled the physical evidence. As Larson understood it, his task was to determine whether there was a mechanical explanation for a problem with the ATV's steering. Dkt. 160, at 222–23. Larson admitted to wiping grease off of the CV joint and disposing of the duct tape, but explained that he did so because he did not believe that particular evidence was relevant to his investigation. Dkt. 160, at 224–225. Larson simply saw the grease as “a nonstructural element” that “was not going to cause any sort of steering difficulties.” Dkt. 160, at 225. Larson discarded the duct tape for the same reason, explaining that he had no reason to believe it was in any way relevant to his investigation. Dkt. 160, at 225. While Larson thus failed to appreciate that the grease, duct tape, and other physical evidence might be relevant in subsequent judicial proceedings, there was no evidence Larson deliberately spoliated that evidence for the purpose of somehow undermining the integrity of those proceedings. Nor was there any evidence that Larson deliberately withheld or delayed production of the photographs depicting the grease and duct tape. Honda maintained that Larson acted willfully and in bad faith by selectively producing photographs that did not show the spoliated evidence. Honda argued that Larson deliberately omitted photographs of the grease and duct tape from his November 2010 expert report because they were not consistent with his theory that grinding contact between the axle shaft and CV joint caused a steering problem in the ATV. Although Larson admitted that he chose not to include those photos in his report, that was because he did not appreciate their significance, not because he was trying to keep them from Honda. Even as the case progressed, however, Judnich and Larson failed to produce the photographs in response to Honda's discovery requests. Larson addressed the issue at his December 2011 deposition, explaining that he could not find the original photographs “[e]lectronic media being as it is with camera failures and various hard drive failures.” Dkt. 98–6, at 11–12. Eventually, Larson located the photographs in backup files on his laptop, and Judnich produced them to Honda on March 2, 2012. Honda then asked for Larson's hard drives, which it received approximately one week before the April 9, 2012 trial was set to begin. Larson's and Judnich's conduct in failing to timely produce those photographs may fairly be characterized as negligent, perhaps even grossly so. The evidence did not, however, support an inference that they willfully or deliberately withheld the photos in an attempt to thwart these judicial proceedings. Absent any evidence of improper motive, the Court concluded that their conduct was not so culpable as to warrant dispositive sanctions. *8 While there was no indication that Larson and Judnich acted willfully or in bad faith, it could arguably be said that their conduct was so negligent that it bordered on reckless. Even assuming they acted recklessly, however, dismissal was not warranted because, as discussed below, lesser sanctions were adequate to remedy the prejudice that Honda suffered as a result of the spoliation. 2. Risk of prejudice “The prejudice inquiry ‘looks to whether the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision of the case.’ ” Leon, 464 F.3d at 959 (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir. 1988)). There can be no question that Honda suffered prejudice due to the spoliation of physical evidence. That prejudice was well documented in the supplemental reports and testimony provided by Honda's experts. As discussed above, for example, Dr. Fowler testified that because of Larson's actions, Honda was not able to test the duct tape and grease for purposes of determining whether the right front axle was present on the ATV at the time of the accident. Dkt. 160, 30–31. And in his supplemental report, Dr. Stevenson concluded that “Honda's investigation ha[d] been irreparably prejudiced by Larson's alteration of the post-accident condition of the inner CV joint” and destruction of “surface grease on the outer CV joint.” He wrote that “Larson's spoliation of physical evidence ha[d] deprived Honda of the opportunity to scientifically analyze and test materials to show that the vehicle had been operated for an extended period of time without the right front axle shaft.” Dkt. 136, at 5. Cline was of the same view, concluding that the destruction of the grease and particulate material from the outer CV joint, and the duct tape covering the inner CV joint, had impeded Honda's “ability to determine the cause of the accident.” Dkt. 133–3, at 12. Dr. Caligiuri summarized it well, explaining that Larson's failure to adhere to good forensic engineering practices meant that Honda could not definitively answer some of the critical questions in the case, such as whether the right front axle was installed in the ATV at the time of the crash. Dkt. 160, at 134–1, at 8. While it is safe to say that Honda was prejudiced as a result of Judnich's and Larson's shoddy practices, that prejudice was not so severe as to interfere with the rightful decision of the case. When the late-disclosed photographs depicting the spoliated evidence came to light, the Court continued the trial at Honda's request and gave the parties three months within which to conduct additional discovery if they chose. During that period, Honda opted to conduct additional depositions, retained a computer forensics expert, and had its original experts review the late-disclosed photographs and supplement their reports accordingly. Those experts uniformly agreed that by removing and discarding the duct tape and grease shown in the photographs, Larson had effectively deprived Honda of the ability to conclusively rebut Johnson's theory of the case and prove that the right front axle was not present in the ATV at the time of the crash. At the same time, however, Honda's experts were also prepared to testify based on those photos and their own investigations that Johnson was operating the ATV without a right front axle shaft when he crashed, and had likely been operating the ATV that way for quite some time. For example, Dr. Fowler specifically concluded “[b]ased on the new photographic evidence, factual materials and witness testimony obtained after [his] initial report, together with the recent evaluations conducted by Exponent...that the evidence indicates that the right front axle shaft was not present in Mr. Johnson's ATV at the time of the accident.” Dkt. 129–1, at 23. While Dr. Fowler believed that the alteration of the ATV components and destruction of evidence prevented him “from even more conclusively affirming this finding,” he was nonetheless prepared to offer his expert opinion in Honda's defense. *9 Dr. Stevenson was prepared to do the same, relying on the late-disclosed photos to supplement his opinion. Dr. Stevenson concluded “to a reasonable degree of engineering certainty” that “the condition of the CV joint depicted in the earliest photograph taken by Robert Larson [was] totally inconsistent with the damage observed on the allegedly mating drive shaft” and “inconsistent with the timeline described by [the] parties involved or associated with Mr. Johnson's accident.” Dkt. 136, at 44. He also concluded that “[t]he condition of the outboard CV joint/differential connection, as depicted in” Larson's earliest photographs was “inconsistent with the failure mechanism” he described, and with the accident description provided by Johnson and other witnesses. Dkt. 136, at 45. As these supplemental reports reflect, Honda was by no means deprived of its ability to go to trial and rebut Johnson's theory of the case with well-supported expert testimony. From the Court's perspective, Honda did not meet its burden of showing that the prejudice it suffered as a result of Larson's and Judnich's conduct was so severe that it could not be remedied by the less drastic, evidentiary sanctions discussed below. Thus, dismissal of Johnson's claims was not appropriate. 3. Efficacy and availability of lesser sanctions A court cannot impose dispositive sanctions for the spoliation of evidence without first considering the feasibility of less drastic sanctions. Halaco, 843 F.2d at 281. At the end of the day, the court should select a sanction that adequately: (1) penalizes the spoliating party; (2) deters the spoliating party and future litigants; (3) cures any prejudice to the affected party by restoring that party to the position it would have been in but for the spoliation; (4) restores the accuracy of the fact-finding process, and; (4) places the risk of an erroneous judgment on the spoliating party. Peschel, 664 F.Supp.2d at 1143 (citing several cases). Looking to the Halaco and Leon factors for guidance, the Court ultimately imposed multiple evidentiary sanctions at trial. To begin with, the Court ruled that all evidence of the spoliation would be admitted. Dkt. 152, at 2. In addition, the Court specifically ordered that Honda would be allowed to call on its experts to testify as they did at the evidentiary hearing on the motion for sanctions, and supplement their original opinions by explaining the impact that the spoliation had on Honda's ability to address the issue of causation. Dkt. 152, at 2. The Court did not give Johnson permission to do the same, however, and specifically limited him to eliciting testimony from those expert witnesses identified on the “will call” witness list attached to the original final pretrial order filed April 2, 2012. Dkt. 152, at 2. This meant that Johnson was not able to rely on the testimony of his materials engineering expert, Dr. Alan Meier. After the Court vacated the April 2012 trial date, Johnson retained Dr. Meier “to determine if the cause of failure [in the ATV] could be determined from the condition of the grease” that Larson had discarded. Dkt. 140–9, at 2. Dr. Meier rebutted the testimony of Honda's experts and stated that unless the ATV “had been operated a fairly long amount time” it would not have been possible to determine from the spoliated grease whether or not the ATV had been driven without its right front axle shaft. Dkt. 160, at 195. And contrary to Dr. Stevenson's opinion, Dr. Meier testified that it would have been very difficult to map where the ATV had been simply by testing the grease. Dkt. 160, at 200. Dr. Meier also explained that it would not have been possible to tell from testing the duct tape how long the ATV had been operated without the right front axle. Dkt. 160, at 201. But because Dr. Meier was not on Johnson's original “will call” list, he was not allowed to testify at trial and rebut the testimony of Honda's experts. By design, the Court imposed sanctions that gave Honda a full opportunity to present evidence of the spoliation and its impact on the case, while limiting Johnson's ability to rebut that evidence with expert testimony. *10 The Court's ruling also meant that Johnson could not call his computer forensics expert, Adrian Irish, who prepared an “opinion of the issues surrounding Robb Larson's disposal methods and attempts to access old/failed internal hard drives after they had been removed from their original computer.” Dkt. 133, at 3. Irish explained that “the steps Mr. Larson took were reasonable, but with his limited technical ability, there was little more he could do, short of hiring an IT expert to troubleshoot his problems.” Dkt. 133, at 4. As a result of the Court's ruling, Johnson was not able to call upon Irish to corroborate Larson's explanation as to why he did not timely produce all of the photographs on his computer hard drives. Dkt. 133. Nor was Johnson allowed to call on Larson to testify as to the contents of a supplemental report he prepared after the original trial date was vacated. Larson wrote that the dirtied condition of the outboard CV joint was “consistent with the reported history of the accident and with the subsequent transportation and storage of the vehicle.” Dkt. 141–1, at 1. Larson's supplemental opinion thus corroborated Johnson's theories that the CV joint had become dirty as it rolled down the hillside at the time of the accident and while being trailered from Zortman to Stevensville. But because Larson had spoliated the evidence shown in the photographs, the Court did not allow him to offer his supplemental opinions. Finally, the Court gave the jury an adverse inference instruction, which read as follows: Plainitiff Zane Johnson has stipulated that prior to affording Defendant American Honda an opportunity to inspect the ATV at issue, Johnson through his attorney, allowed Robb Larson to modify, remove, and discard physical evidence from the ATV, permanently altering the vehicle's post-crash condition. You have also heard testimony and been presented evidence about the physical evidence that Robb Larson modified, removed, and discarded. Defendant American Honda has argued that this physical evidence would have proven material to the issues of whether the underlying crash was caused by a defect in the ATV's right front axle shaft as claimed by Zane Johnson, or whether the right front axle shaft could not have caused the crash because it was not present on the ATV at the time of the crash. If you find that the physical evidence that was modified, removed, and discarded by Robb Larson would have been material in deciding the disputed issues of fact in this case, then you are permitted, but not required, to infer that the physical evidence would have been unfavorable to Plaintiff Zane Johnson and favorable to Defendant American Honda. Dkt. 221, at 31. The Court ultimately found, in the exercise of its discretion, that this instruction and the evidentiary sanctions discussed above were adequate to penalize Johnson and remedy the prejudice inuring to Honda as a result of the spoliation, such that dismissal was not warranted. 4. Relationship between the misconduct and the matters in controversy Another “critical criterion for the imposition of a [dispositive] sanction is that the misconduct penalized must relate to matters in controversy in such a way as to interfere with the rightful decision of the case.” Halaco, 843 F.2d at 381. There was no doubt that the evidence Larson spoliated went directly to the heart of the matter in controversy here. As discussed above, however, the lesser evidentiary sanctions imposed at trial were a sufficient remedy under the circumstances. Ultimately, then, the spoliation of evidence did not threaten to interfere with the rightful decision of the case. 5. Public policy favoring disposition of cases on their merits As always, the public policy favoring resolution of cases on their merits weighed against imposing dismissal as a spoliation sanction. 6. Extraordinary circumstances *11 This final factor is simply meant to refer to the general principle that dismissal as a sanction is only “justified in extreme circumstances, in response to abusive litigation practices, and to insure the orderly administration of justice and the integrity of the court's orders.” Halaco, 843 F.2d at 380. Such general “considerations do not establish a precise substantive standard, but they do suggest the conditions under which a dismissal under a court's inherent powers might be appropriate.” Halaco, 843 F.2d at 380. As the above discussion reflects, the extraordinary circumstances necessary to justify dismissal were not present in this case. Based on the record as it stood prior to trial, the Court was confident that lesser sanctions would be adequate to ameliorate the prejudice occasioned by the loss of evidence, and so denied Honda's motion for case-terminating sanctions in the interest of resolving the case on the merits. III. Honda's Renewed Motion for Attorney's Fees and Expert Costs as a Sanction for Plaintiff's Spoliation of Evidence Honda is now asking the Court to impose an award of attorney's fees and costs as an additional spoliation sanction. Honda argues that the evidentiary sanctions imposed at trial were not sufficient to remedy the prejudice it suffered as a result of the spoliation, and maintains that an award of fees and costs is necessary to make it whole. Honda explains that it undertook “an expensive reopening of discovery and re-deployment of experts following the Court's April 5, 2012, decision to vacate the trial to permit additional investigation and proceedings to gauge the impact of the spoliation.” Dkt. 269. Honda seeks reimbursement for a total of $792,010.52 in attorney's fees and costs. That total amount represents the $411,797.00 in attorney's fees and $380,213.52 in expert costs Honda incurred between April 5, 2012, when the Court vacated the original trial date, and September 21, 2012, when the Court convened the evidentiary hearing on Honda's motion for dispositive spoliation sanctions. A district court may, under its inherent powers, “award sanctions in the form of attorneys' fees against a party or counsel who acts in ‘bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Leon, 464 F.3d at 961 (quotingPrimus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997)). Before imposing such a fee-shifting sanction, however, “the court must make an express finding that the sanctioned party's behavior ‘constituted or was tantamount to bad faith.’ ” Leon, 464 F.;3d at 961 (quoting Primus, 115 F.3d at 648)). See also Peschel, 664 F.Supp.2d at 1148 n. 8 (finding that evidentiary sanctions were warranted because spoliation was the result of recklessness, but denying request for a monetary sanction because the evidence did not support a finding of bad faith). “A party ‘demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.’ ” Leon, 464 F.3d at 961 (quoting Primus, 115 F.3d at 649). Conduct is “tantamount to bad faith” if there is “recklessness...combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001). Honda does not dispute that Leon provides the applicable legal standard, but argues “there is ample evidence in the record to sustain the necessary finding of bad faith.” Dkt. 275, at 2. As discussed above, however, the evidence before the Court at the time of its ruling on Honda's pretrial motion for dispositive sanctions did not support a finding of bad faith. *12 Honda did not establish that Larson or Judnich deliberately delayed or disrupted the litigation, or acted with an improper motive when handling the physical evidence and failing to timely produce all of Larson's photographs. As discussed above in conjunction with Honda's original motion for dispositive spoliation sanctions, Larson's and Judnich's conduct may have been so negligent that it bordered on reckless, but there was no evidence that they were motivated by an improper purpose or were otherwise acting deliberately in bad faith. See e.g. Pacificorp v. Northwest Pipeline GP, 2012 WL 6131558 **10–11 (D. Or. Dec 10, 2012) (concluding after looking to Leon and other Ninth Circuit cases that bad faith requires more “than mere willful destruction of potentially relevant evidence,” such as evidence that the spoliating party was motivated by an improper purpose). The evidence and testimony presented at trial did not change matters. Larson's trial testimony was consistent with his testimony at the evidentiary hearing on the motion for sanctions. Larson's actions may fairly be characterized as negligent, perhaps even grossly so, but there is not sufficient evidence to support an inference that his behavior constituted or was tantamount to bad faith. Absent such a finding, Honda is not entitled to an award of attorney's fees and expert costs as an additional sanction for the spoliation of evidence. As discussed at length above, the evidentiary sanctions imposed by the Court at trial were adequate to remedy the prejudice Honda suffered as a result of the spoliation, and imposing an award of attorney's fees and costs as an additional sanction is not warranted. III. Conclusion Based on the foregoing, IT IS ORDERED that Honda's Renewed Motion for Attorney's Fees and Expert Costs as a Sanction for Plaintiff's Spoliation of Evidence is DENIED. Footnotes [1] Because the parties are familiar with the facts and lengthy procedural history of this case, they are set forth here only as necessary to explain the Court's reasoning. 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