City of Colton v. Am. Promotional Events, Inc.
City of Colton v. Am. Promotional Events, Inc.
2011 WL 13223880 (C.D. Cal. 2011)
November 22, 2011
Segal, Suzanne H., United States District Judge
Summary
The court found that the United States had failed to issue timely litigation hold letters, which constituted a preliminary showing of spoliation. The court ordered the United States to produce the litigation hold communications, as the attorney-client privilege in relation to the hold letters had been waived. The court also found that the government's extraordinary delay in the issuance of its litigation hold letters demonstrated an extremely reckless attitude toward the preservation of evidence.
Additional Decisions
CITY OF COLTON, Plaintiff,
v.
AMERICAN PROMOTIONAL EVENTS, INC., et al., Defendants.
And Related Consolidated Actions
v.
AMERICAN PROMOTIONAL EVENTS, INC., et al., Defendants.
And Related Consolidated Actions
NO. EDCV 09–01864 PSG (SSx)Consolidated with Case Nos. CV 09–06630 PSG (SSx)CV 09–06632 PSG (SSx), CV 09–07501 PSG (SSx), CV 09–07508 PSG (SSx), CV 10–00824 PSG (SSx)
United States District Court, C.D. California
Signed November 22, 2011
Counsel
Danielle Gerber Sakai, Best Best and Krieger LLP, Riverside, CA, John H. Holloway, Best Best and Krieger LLP, Walnut Creek, CA, James R. Macayeal, Jeffrey A. Spector, Patricia Lyn Hurst, Rachael Amy Kamons, Richard M. Gladstein, James Wheelock Beers, US Department of Justice, Amy R. Gillespie, Bonnie Cosgrove, David Rosskam, United States Department of Justice Environmental Enforcement Section, Washington, DC, Bradley R. O'Brien, Deborah Gitin, US Department of Justice Environmental Enforcement Section, Michele S. Benson, US Environmental Protection Agency, San Francisco, CA, Davis H. Forsythe, United States Department of Justice, Denver, CO, Adam Michael Reich, Katherine Frenck Murray, Paul Hastings Janofsky & Walker LLP, Los Angeles, CA, for Plaintiff.Daniel J. Coyle, Delfino Madden O'Malley Coyle & Koewler, LLP, Olivia M. Wright, Steven H. Goldberg, Downey Brand LLP, Jennifer Hartman King, King Williams and Gleason LLP, Sacramento, CA, Marc A. Shapp, Hunsucker Goodstein & Nelson PC, Lafayette, CA, Francis Norman Scollan, Emily L. Murray, John Anthony Lawrence, Richard Alan Dongell, Matthew Clark Bures, Dongell Lawrence Finney LLP, Allan Edward Ceran, Burke Williams & Sorensen LLP, William W. Funderburk, Jr., Anna Louise Le May, Castellon and Funderburk LLP, Sarah E. Johnston, Barnes and Thornburg LLP, Beth Marie Weinstein, Steven Edward Soule, Beth Marie Weinstein, C. Robert Boldt, Kirkland and Ellis LLP, David S. Poole, Poole and Shaffery LLP, Mark Riera, Akerman LLP, Andrew Zachary Edelstein, Mayer Brown LLP, Jeffrey A. Rosenfeld, DLA Piper LLP, Los Angeles, CA, Stephen C. Lewis, Robert Morgan Gilhuly, Barg Coffin Lewis and Trapp LLP, San Francisco, CA, Keith Alan Kelly, Law Office of Keith A. Kelly, Douglas C. Smith, Smith Law Offices LLP, Amy E. Hoyt, Burke Williams & Sorensen LLP, Riverside, CA, John E. Van Vlear, Newmeyer & Dillion LLP, Daniel S. Kippen, Voss Cook and Thel LLP, Newport Beach, CA, Christine A. Renshaw, Steven Joseph Renshaw, Renshaw and Associates APLC, Ventura, CA, Christopher T. Johnson, Wolfe & Wyman LLP, Jad T. Davis, Kutak Rock LLP, Irvine, CA, Elizabeth Boucher Dawson, US Department of Justice, Washington, DC, Brian Edward Koegle, Poole & Shaffery LLP, Valencia, CA, Brian A. Rawers, Katherine T. Weadock, Lewis Brisbois Bisgaard and Smith LLP, San Diego, CA, Matthew C. Sostrin, Richard F. Bulger, Mayer Brown LLP, Chicago, IL, for Defendants.
Thomas N. Jacobson, Law Offices of Thomas N. Jacobson, Riverside, CA, Leslie Marie Hill, US Department of Justice, Andrew Wood Ingersoll, United States Department of Justice Environmental Enforcement Section, Michael C. Augustini, US Department of Justice Environmental Defense Section, Washington, DC, Henry Lerner, James L. Meeder, Allen Matkins Leck Gamble Mallory and Natsis LLP, Peter H. Weiner, Paul Hastings LLP, San Francisco, CA, Martin N. Refkin, Thomas Alan Bloomfield, Timothy P. Gallagher, The Gallagher Law Group PC, Jeffrey David Dintzer, Dana Lynn Craig, Patrick Ward Dennis, Matthew C. Wickersham, Gibson Dunn and Crutcher LLP, David C. Solinger, Hunsucker Goodstein & Nelson PC, Michael R. Farrell, Allen Matkins Leck Gamble Mallory and Natsis LLP, Nicholas James Begakis, Dennis S. Ellis, Paul Hastings Janofsky & Walker LLP, Los Angeles, CA, Penelope Alexander–Kelley, Jean–Rene Claude Basle, Office of the County Counsel, San Bernardino, CA, Sallie Lux, Brouse McDowell, Akron, OH, Brian L. Zagon, Philip C. Hunsucker, Hunsucker Goodstein PC, Lafayette, CA, Amanda A. Neidert, Joseph L. Beavers, Joseph W. Hovermill, Miles & Stockbridge PC, Baltimore, MD.
Segal, Suzanne H., United States District Judge
MEMORANDUM AND ORDER DENYING UNITED STATES' “MOTION FOR DE NOVO REVIEW OF SPECIAL MASTER'S OCTOBER 6 ORDER COMPELLING PRODUCTION OF LITIGATION HOLD COMMUNICATIONS” (Dkt. No. 1036)
I.
INTRODUCTION
*1 On October 6, 2011, the Honorable Venetta S. Tassopoulos (Ret.), in accordance with her designation as the Special Master in the above-captioned matter (see Dkt. No. 278), issued a Report and Order resolving certain discovery disputes (the “Report”). (See Report of Special Master, Dkt. No. 1008). These disputes involved Plaintiff United States of America (the “United States”) and Defendant Goodrich Corporation (“Goodrich”) and concerned the United States' production of litigation hold communications.
On October 20, 2011, the United States filed a Motion for De Novo Review of Special Master's October 6 Order Compelling Production of Litigation Hold Communications and a Stay Pending Appeal (the “Motion”). (Dkt. No. 1036). On October 31, 2011, Goodrich filed an Opposition to the Motion (the “Opposition” or “Opp.”). (Dkt. No. 1060). The United States filed a Reply in further support of the Motion on November 4, 2011 (the “Reply”). (Dkt. No. 1074). On November 8, 2011, the Court held a hearing on the Motion. On November 10, 2011, the Court ordered the United States to file the litigation hold communications under seal for in camera review. (Dkt. No. 1079). The United States filed the documents under seal on November 15, 2011.
As discussed in further detail below, the United States seeks an order vacating the Special Master's October 6 Report and Order and denying Goodrich's underlying Motion to Compel. (See Dkt. No. 892). As set forth in this Court's prior order appointing the Special Master, all rulings by the Special Master (whether findings of fact or legal conclusions) shall be reviewed de novo by the Magistrate Judge. See Fed. R. Civ. P. 53(g)(3)(providing for de novo review); see also Order dated March 5, 2010 (“All rulings by the Special Master (whether findings of fact or legal conclusions) shall be reviewed de novo by the Magistrate Judge.”). (Dkt. No. 278). Any objections to the Magistrate Judge's review of the Special Master's ruling shall be made pursuant to the normally applicable rules. See Fed. R. Civ. P. 72(a). For the reasons stated below, the United States' Motion for De NovoReview of Special Master's October 6 Order Compelling Production of Litigation Hold Communications is DENIED. The Court VACATES its prior Order of October 25, 2011, which stayed the October 6, 2011 Report and Order of the Special Master.
II.
THE SPECIAL MASTER'S REPORT AND ORDER
Prior to the October 6 Report, the Special Master had ordered the United States to submit for in camera review all litigation hold communications relating to the Rialto–Colton Basin dispute. (Id. at 2–3). Following a comprehensive review of those documents and briefing by the parties regarding the date on which the EPA was required to preserve evidence, the Special Master ordered the United States to produce the litigation hold communications. (Id. at 11). The Special Master determined that litigation hold instructions are discoverable upon a preliminary showing of spoliation. (Id. at 4) (citing Major Tours, Inc. v. Colorel, 2009 WL 241361 at *2 (D.N.J. Aug. 4, 2009), aff'd by 720 F. Supp. 2d 587, 617–622 (D.N.J. 2010)). The Special Master found that while the evidence to date did not definitively establish that the United States had spoliated documents,[1] (id. at 6), Goodrich had made a sufficient preliminary showing of spoliation to warrant production of the letters. (Id. at 4–5) (summarizing evidence relating to the potential destruction of files relating to a 2006 Vadose Zone Model prepared by a contractor for the EPA and the deposition testimony of two EPA officials regarding their document retention practices). The Special Master concluded that the EPA had a clear duty to preserve documents in anticipation of litigation at least by July 12, 2006, the date when the EPA's contractor completed the Vadose Zone Model. (Id. at 8). The Special Master also found that the litigation hold letters issued by the EPA in 2010 and 2011 were untimely and gave rise to an inference that evidence may have been discarded, deleted or destroyed. (Id. at 10–11). Therefore, the Special Master found that the United States had waived any privilege otherwise attaching to the litigation hold communications. (Id. at 11).
III.
THE PARTIES' CONTENTIONS
*2 The United States contends that a court may order the production of litigation hold communications only “after an affirmative finding of spoliation, not on a finding of possible spoliation.” (Motion at 1; see also Reply at 2–4). The United States further argues that because there is no evidence that the EPA destroyed any documents relevant to a claim or defense in this litigation, Goodrich has failed to make the threshold showing necessary to warrant the production of litigation hold letters. (Motion at 8–9; Reply at 4–9). According to the United States, late litigation hold letters are not per seevidence of spoliation and do not give rise to an inference of spoliation that would waive the privilege attaching to the documents. (Id. at 9). Furthermore, the United States contends that a party's duty to preserve documents is triggered only when litigation is “probable,” not merely possible, and that litigation was not foreseeable in 2006. (Id. at 10–11). In support of that contention, the United States argues that the EPA was not the lead agency for the Site in 2006 and notes that the Vadose Zone Model was “directed at Emhart, not Goodrich.” (Reply at 11). Consequently, the United States maintains that information relating to the 2006 Vadose Zone Model is not relevant to this action, but even if it were, the model is publicly available and was in fact produced. (Id. at 11–12).
Goodrich contends that a party seeking litigation hold communications need make only a preliminary showing of spoliation because such letters are merely a “necessary precursor” to a determination of whether a party should be subject to sanctions for allowing the destruction of documents. (Opp. at 8–9). Goodrich further argues that it has made a sufficient showing because the United States reasonably should have anticipated litigation long before it issued its first litigation hold letter directly related to this litigation, which did not occur until three months after the United States filed its Complaint. (Id.at 11, 13–14). Goodrich relies on testimony by EPA officials and their consultants, who were unaware of litigation hold letters ever being issued and who did not take reasonable steps to preserve evidence, and evidence relating to the Vadose Zone Model, to make that preliminary showing. (Id.). According to Goodrich, the United States has also failed to establish that it should be relieved of its preservation obligations under the Federal Rules of Civil Procedure by the Federal Records Act because the Federal Records Act does not require the same degree of preservation to which litigants are entitled. (Id. at 12).
IV.
DISCUSSION
A. Litigation Hold Letters Are Generally Protected From Discovery, But That Protection May Be Waived
As a general matter, litigation hold letters are not discoverable, particularly when a party has made an adequate showing that the letters include material protected under the attorney-client privilege or work product doctrine. Major Tours, Inc., 2009 WL 2413631 at *2. Whether litigation hold communications are privileged depends on the specific facts involved in the documents at issue, not a per se rule that a privilege applies in all cases. Olesky v. General Elec. Co., 2011 WL 3471016 at *3 (N.D. Ill. Aug. 8, 2011)(citing Muro v. Target Corp., 250 F.R.D. 350, 360 (N.D. Ill. 2007)).
Even if particular litigation hold communications are privileged, the court has an inherent power to order their production in connection with a spoliation claim. Olesky, 2011 WL 2471016 at *3. Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Major Tours, Inc., 2009 WL 2413631 at *2 (quoting Mitsui O.S.K. Lines v. Continetnal Shipping Line Inc., 2007 WL 1959250 at *6 (N.D.J. June 29, 2007)). The duty to preserve is triggered when litigation is pending or reasonably foreseeable, at which time a party is required to preserve all relevant evidence and put into place a litigation hold to preserve relevant documents. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). Counsel “must oversee compliance with the litigation hold by monitoring the party's efforts to retain and produce relevant documents.” Major Tours, 2009 WL 2413631 at *2. A preliminary showing of spoliation may waive the protection generally afforded litigation hold letters. Id. at *5.
B. Based Upon The Investigation Of The Site And The Parties' Litigation History, Litigation Was Reasonably Foreseeable By At Least 2006
*3 The EPA issued a Unilateral Administrative Order to both Goodrich and Emhart Industries (“Emhart”) on July 14, 2003 ordering those entities to conduct a remedial investigation of the 160–acre parcel within the Rialto-Colton Basin known as the B.F. Goodrich Site. (Motion at 2). In 2004, the City of Rialto and Rialto Utility Authority (collectively, “Rialto”) filed a federal lawsuit against several defendants, including the Department of Defense, seeking an order requiring the investigation and cleanup of environmental contamination in the Basin. (Id. at 3). The City of Colton then filed a similar suit in federal court (“Colton I”), followed by a third party complaint filed by defendant Pyro Spectaculars, Inc. (“PSI”). (Id.). Summary judgment was entered against the City of Colton in 2006. (Id.).
The City of Colton filed a second suit in federal court (“Colton II”) seeking recovery of response costs not previously adjudicated. (Motion at 3). Goodrich filed a third party complaint in Colton II on December 8, 2006 against the EPA challenging the constitutionality of Section 106 of CERCLA. (Id.). On October 25, 2007, the EPA issued a litigation hold relating to the Goodrich complaint. (Id.).
The Rialto case, the Colton II case, and others were consolidated in 2007. (Motion at 4). The cases were dismissed without prejudice in 2008 and were re-filed in 2009. (Id.). In September 2009, the EPA placed the Site on the Superfund National Priorities List and assumed the role of lead agency. (Id. at 5). The United States admits that the EPA understood at that time that litigation was probable. (Id.). The United States filed suit on behalf of the EPA against Goodrich, Emhart, PSI, and others on February 4, 2010. On May 14, 2010, the EPA sent a litigation hold letter to Region 9 personnel. (Id.). In August 2011, additional litigation hold letters were issued to regions other than Region 9 and to EPA laboratories. (Id.).
In 2006, the EPA asked CH2M HILL, a contractor working for the EPA, to prepare a Vadose Zone Model of the Site “in connection with the operations of an alleged predecessor of Emhart.” (Motion at 4). CH2M HILL used a publicly available computer model to determine whether disposal of perchlorate at the Site prior to 1957 could travel through the subsurface (vadose zone) to reach groundwater. (Id.). According to the United States, EPA personnel assisted Region 9's Office of Regional Counsel “in evaluating potential enforcement litigation” at that time, and focused on West Coast Loading Corporation, which had not complied with the unilateral order. (Id.). Goodrich requested a copy of the Vadose Zone Model in December 2007 through a FOIA request. (Opp. at 2). The EPA produced the model pursuant to a court order in 2009. (Motion at 4; Opp. at 3). Goodrich contends that the production did not include “key output files, including files known as ‘sim’ files as well as all model runs” with the Vadose Zone Model. (Opp. at 3).
By the time that the United States had its consultant prepare the Vadose Zone Model in 2006, it knew or reasonably should have known that litigation regarding the Site was reasonably foreseeable and that the Model would be highly relevant evidence. By 2006, complaints had been filed by Rialto, the City of Colton and PSI concerning the cleanup of the Site and the allocation of costs. The EPA has in fact admitted that the Model was created in anticipation of litigation in its objections to the production of the Vadose Zone Model in response to Goodrich's FOIA request. (See Declaration of Keith Takata, Dkt. No. 892, Dintzer Decl., Ex. I at ¶ 17) (stating that the “[r]elease of the Vadose Zone Model would disclose information relating to EPA's litigation preparations, prematurely revealing EPA's evidence or strategy in future CERCLA enforcement proceedings at the Site”) (emphasis added). Accordingly, based upon the litigation history arising out of the Site after 2003 and the EPA's request for preparation of the Vadose Zone Model in 2006, litigation over the Site between the parties to the current lawsuit was reasonably foreseeable by 2006.
C. The United States Failed To Issue Timely Litigation Hold Letters
*4 As previously discussed, a party's obligation to preserve evidence is triggered when litigation is “pending or reasonably foreseeable.” Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). “When litigation is ‘reasonably foreseeable’ is a flexible fact-specific standard.” Id. The “mere existence of a potential claim or the distant possibility of litigation” is not sufficient to trigger the duty to preserve, but litigation need not be “imminent” before the duty arises. Id. “This is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.” Id.
Here, there is no question that the United States' issuance of litigation hold letters was grossly untimely. CH2M HILL completed the Vadose Zone Model on July 12, 2006. (Report at 8). The United States' bald assertion that litigation was “certainly not foreseeable in 2006” simply strains credulity. (Motion at 11). Even accepting the United States assertion that the hold letters were not due until some later date, the United States did not issue its first litigation hold relating to this litigation until May 14, 2010, more than three months after the United States filed its complaint and nearly four years after it commissioned the Vadose Zone Model as part of its “litigation preparations.” Based upon these facts, the United States' 2010 litigation hold letters were manifestly untimely.[2]
D. The Failure To Issue Timely Litigation Hold Letters Constitutes A Preliminary Showing of Spoliation
The Major Tours court ordered production of litigation hold letters on a “preliminary showing of spoliation.” Major Tours, Inc., 2009 WL 2413631 at *3 (“[T]he Court finds there has been a preliminary showing of spoliation of evidence.”); see also id. at *5 (“[M]ost applicable authority from around the country provides that litigation hold letters should be produced if there has been a preliminary showing of spoliation.”). The court found that evidence from defendants' witnesses concerning their ignorance of a litigation hold and their undisciplined retention practices, coupled with a lengthy delay between the time a duty to preserve arose and defendants' issuance of a litigation hold, constituted a sufficient preliminary showing that warranted the production of litigation hold letters. The parallels between the facts in that case and the instant dispute are striking and compel the same result.
The Major Tours court initially determined that plaintiffs had made a preliminary showing of spoliation by relying on deposition testimony of defendants' witnesses. Id. at *3. One defense witness testified that while he had “probably” been told by his lawyers to save his email, he did not in fact save anything. Id. Another witness stated that no one had ever talked to her about a litigation hold policy and that she was not sure what a litigation hold policy was. Id. The Major Tours court concluded, “[t]he fact that one of the Defendants admitted he did not save any of his emails, and Defendants' 30(b)(6) witness did not even know what a litigation hold was, is evidence that Defendants did not fulfill their role of preserving all relevant documents.” Id. Here, Goodrich has elicited deposition testimony from EPA witnesses that similarly demonstrates a failure to implement a hold and a lack of awareness of any litigation hold. For example, Keith Takata, Deputy Regional Administrator for EPA, Region 9 testified that he did not know if anyone from Region 9, EPA headquarters, or the Department of Justice had issued a litigation hold in the instant matter. (Dkt. No. 892, Dintzer Decl., Ex. T at 215:13–21). Mr. Takata further testified that while he occasionally wrote handwritten notes on briefing papers, he sometimes threw them away. (Id.at 216:19–22). Kathleen Salyer, Assistant Director of the Superfund Division, California Site Cleanup Branch, also admitted that she deleted emails using “subjective” criteria, and could not state under oath that she has not deleted emails pertaining to the Site or estimate how many emails she might have deleted. (Id., Ex. U, at 134:2–20). As was the case in Major Tours, these admissions constitute a preliminary showing of spoliation.
*5 The Major Tours court further found that the three and a half-year delay between the time that the duty to preserve arose (September 11, 2003) and the time the litigation hold letters issued (March 22, 2007) created a probability that relevant evidence was lost. Major Tours, 2009 WL 2413631 at *4. While the court acknowledged that it was difficult to know precisely what evidence was lost before defendants implemented a litigation hold, it concluded that given the number of custodians and the delay of years, “it is reasonable to infer that some relevant evidence was lost.” Id. Here, as discussed previously, the United States' duty to preserve evidence arose at least by July 2006, when the United States created a Vadose Zone Model for the Site. The first litigation hold letter related to this litigation did not issue, however, until May 14, 2010, nearly four years after the obligation was triggered. As was the case in Major Tours, it is reasonable to infer from this lengthy delay that some relevant evidence was lost.
The Court rejects the United States' assertion that the Court must find “actual” spoliation before ordering the production of litigation hold letters. See, e.g., Major Tours, 2009 WL 2413631 at *5 & fn. 4 (ordering the production of litigation hold letters on a “preliminary showing of spoliation” but declining to rule at that time as to whether spoliation sanctions should be imposed). The United States' proposed standard appears to construe an order requiring the production of litigation hold letters as a “sanctions” order, but this construction of the Special Master's ruling is incorrect. Discovery of litigation hold letters is not itself necessarily a sanction, but may be, as here, an initial step that allows a party to investigate and possibly prove spoliation, so that the court may determine whether sanctions are warranted.
Proof of “actual spoliation,” i.e., the identification of specific relevant documents a party was obligated to preserve but instead destroyed, is challenging and requires “discovery about discovery.” As the Major Tourscase makes clear, a court may order the production of litigation hold letters on a preliminary factual showing that leads to an inference of spoliation. Here, the extraordinary delay in issuing litigation hold letters in combination with witness testimony regarding inconsistent or non-existent retention practices leads to an inference of spoliation. While these facts may not ultimately suffice for a showing of “actual” spoliation, they are sufficient to warrant an order requiring production of the United States' litigation hold letters.
E. A Preliminary Showing Of Spoliation Overcomes The Asserted Privileges
In Major Tours, the court required defendants to produce litigation hold letters, but “only those portions of the letter that refer to litigation hold or preservation issues.” Major Tours, 2009 WL 2413631 at *5. The court determined that “[t]he remainder of the [litigation hold] letter is protected by the attorney-client privilege and work-product doctrine.” Id. Here, after a comprehensive in camera review, the Special Master found that the “attorney-client privilege in relation to the hold letters issued by the EPA” had been waived and ordered their production. (Report at 11). Implicit in the Special Master's order is the finding that the letters address only litigation hold or preservation issues, a finding which the United States does not challenge. Furthermore, on November 10, 2011, this Court ordered the United States to submit its litigation hold communications for a second in camera review. (Dkt. No. 1079, Order Requiring In Camera Review, etc.). The Court has completed its own in camera review and finds that the litigation hold communications at issue addressed almost entirely hold or preservation issues. Any sentence that deviated from these issues was not a material communication and does not provide grounds to withhold the communications.
*6 Based upon the Court's in camera review and the preliminary showing of spoliation, the United States' litigation hold communications are discoverable. Additionally, the Court finds that the government's extraordinary delay in the issuance of its litigation hold letters is not mere inadvertence, but demonstrates an extremely reckless attitude toward the preservation of evidence once litigation was reasonably foreseeable. Nonetheless, spoliation has not yet been proven and may never be proven. However, the United States' conduct requires that the Court order the litigation hold letters to be produced to the moving parties.
V.
CONCLUSION
For the reasons stated above, the United States' Motion for De NovoReview of Special Master's October 6 Order Compelling Production of Litigation Hold Communications is DENIED. The United States is ORDERED to produce the litigation hold communications submitted to the Special Master to the moving parties within seven days of the date of this Order. The United States must produce the documents or file a request for a stay of this order with the District Judge within seven days of the date of this Order. IT IS SO ORDERED.
Footnotes
The Special Master specifically noted: “At this time the Special Master cannot conclude that the EPA has spoliated documents in this case. Goodrich has not shown that the EPA has destroyed material evidence which it knew or should have known was relevant to the litigation.” (Id. at 6).
Although the Court finds that the United States' obligation to preserve evidence arose at least by 2006, it is telling that even by the United States' own admission, it did not promptly act to preserve evidence. The United States concedes that it “understood ... that litigation was probable” when the EPA included the Site on the Superfund List in September 2009. (Motion at 5). Nonetheless, the United States did not issue a litigation hold until May 2010, eight months after it “understood” that litigation was probable. “A plaintiff's duty [to preserve evidence] is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of America Sec. LLC, 685 F. Supp. 2d 456, 460 (S.D.N.Y. 2010). Therefore, even accepting the United States' improbable representation that it did not foresee litigation until the fall of 2009, it was still derelict in its duty to preserve evidence.