U.S. ex rel. Griffis v. EOD Tech., Inc.
U.S. ex rel. Griffis v. EOD Tech., Inc.
2024 WL 4921592 (E.D. Tenn. 2024)
September 13, 2024
McDonough, Travis R., United States District Judge
Summary
A private party brought a suit against a company under the False Claims Act, and requested sanctions against the Department of Justice for the destruction of relevant government documents, including ESI. The court must determine if the DOJ had an obligation to preserve the ESI and if it destroyed it with a culpable state of mind. The court also discussed the government's status as a non-party in qui tam actions and its potential liability for spoliation.
Additional Decisions
UNITED STATES OF AMERICA, ex rel. PATRICK GRIFFIS, and PATRICK GRIFFIS, individually, Plaintiffs,
v.
EOD TECHNOLOGY, INC. n/k/a JANUS GLOBAL OPERATION, LLC, Defendant
v.
EOD TECHNOLOGY, INC. n/k/a JANUS GLOBAL OPERATION, LLC, Defendant
Case No. 3:10-cv-204
United States District Court, E.D. Tennessee, Northern Division
Filed September 13, 2024
McDonough, Travis R., United States District Judge
MEMORANDUM AND ORDER
*1 Before the Court is Defendant EOD Technology, Inc.'s (“EODT”) motion for sanctions against Plaintiff-Relator Patrick Griffis (“Relator”). (Doc. 306.) In its motion, EODT argues that the Department of Justice (“DOJ”) failed to preserve government documents, including source-selection documents (“SSDs”) explaining the Government's reasoning for awarding EODT certain contracts, which are relevant in defending against Relator's claims under the False Claims Act, 31 U.S.C. § 3729, et seq. (the “FCA”). (Id. at 1.) Specifically, EODT claims DOJ failed to preserve SSDs pertaining to Contract No. W91GY0-07-C-0053 (“Rusafa”), Contract No. W91GY0-07-D-0001 (“IDN”), Contract No. W91GDW-07-D-4027 (“TWISS I”), and Contract No. W91GDW-09-D-4029 (“TWISS II”). (Id. at 1.) For the following reasons the Court will DENY EODT's motion for sanctions. (Doc. 306.)
I. BACKGROUND AND PROCEDURAL HISTORY
Relator filed his first complaint in this case in May of 2010, alleging FCA violations pertaining to U.S. Army Corp of Engineers' task orders issued to EODT. (Doc. 1.) In October of 2017, Relator filed his First Amended Complaint, adding claims relating to the Rusafa Contract, TWISS I Contract, and TWISS II Contract. (Doc. 74, at 13–15.) Relator added claims pertaining to the IDN Contract in his Second Amended Complaint, filed in August of 2022.[1] (Doc. 112, at 49.)
A. Rusafa
In the spring of 2007, the Joint Contracting Command–Iraq/Afghanistan (“JCC-IA”) awarded the Rusafa contract to EODT. (Doc. 321-5, at 1.) Relator alleges that EODT falsely represented in its proposal that it would not employ subcontractors and that this misrepresentation influenced JCC-IA's decision to award the Rusafa Contract to EODT. (Doc. 251, at 36–37.) Relator also claims that EODT misrepresented the leave it would offer its security workers and falsely inflated its labor costs. (Id. at 37, 40–41.)
B. TWISS I
EODT submitted its proposal for TWISS I in May 2007. (Id. at 44.) Relator alleges that EODT misrepresented its relationships with Iraqi businesses to induce JCC-IA to award TWISS I to EODT. (Id. at 44–46.) JCC-IA listed “Iraqi Participation” as one of four factors to be used in evaluating bids for TWISS I. (Doc. 251-12, at 29.) Thus, bidders who used more “Iraqi companies and personnel” would receive higher ratings during JCC-IA's evaluation. (See id.) Relator claims that EODT created two “bogus” Iraqi subcontractors and used these in its proposal for TWISS I to induce JCC-IA's award. (Doc. 251, at 22–25, 45–47.) Relator also alleges that EODT fraudulently proposed burdened labor rates knowing it would subcontract for labor at significantly lower rates. (Id. at 47–48.)
C. TWISS II
D. IDN
E. DOJ's Investigations
After Relator's initial complaint in 2010, DOJ conducted its own investigation into EODT's conduct. (Doc. 290-6, at 13; Doc. 270-6, at 324.) This investigation lasted roughly from 2010 to 2015. (Doc. 290-6 at 13, 93; Doc 270-6, at 324–25.) DOJ became aware of the Rusafa and TWISS contracts while interviewing witnesses during this investigation. (Doc. 270-6, at 328.) After the investigation concluded, DOJ declined to intervene in the case. (Doc. 31.) When Relator filed his First Amended Complaint in October 2017, DOJ initiated a second investigation into EODT. (Doc. 270-6, at 328.) Relator filed his Second Amended Complaint in August 2022, and DOJ investigated Relator's new allegations. (Id.) DOJ issued a subpoena to EODT in April 2018, specifically requesting “all contract documents” relating to Rusafa, TWISS I, and TWISS II, along with other contracts at issue in Relator's complaint.[2] (Doc. 306-9, at 10–11.) In 2021, DOJ gained access to documents and files relating to the contracts at issue in EODT's motion during two visits to the U.S. Army Contracting Command at Rock Island Arsenal. (Doc. 270-6, at 329–30.) DOJ took scans and photographs of documents and excerpts related to Rusafa, the TWISS contracts, and IDN. (Id. at 330.) Some of these documents are SSDs. (See Docs. 321-5, 306-8.) After reviewing these documents, DOJ requested that the Army preserve the physical copies stored at Rock Island. (See Doc. 345-1.) Nonetheless, Army personnel destroyed all physical copies of the documents held at Rock Island Arsenal in 2022. (Doc. 306-3, at 2–3; Doc. 306-5, at 3; Doc. 326-7, at 4.) DOJ declined to intervene in this case for a second time in January 2023, and ended its second investigation. (Doc. 270-6, at 328.) After it declined to intervene, DOJ issued a litigation hold to the Army in April 2023. (Id. at 331.) It issued a litigation hold to the Department of Defense in May 2023. (Id.)
F. Missing Source-Selection Documents
A number of documents pertaining to Rusafa, the TWISS contracts, and IDN were destroyed in Spring of 2022.[3] (Doc. 306-3, at 2–3.) Under 48 C.F.R. § 15.308, source-selection authorities (“SSAs”) for government contracts are required to document the “rationale for any business judgments and tradeoffs made or relied on by the [source-selection authority].” This regulatory requirement suggests that SSDs should exist for all contracts JCC-IA awarded to EODT. Currently, neither party has access to SSDs for TWISS II and IDN. (Doc. 306, at 7; Doc. 321, at 2.) Some of the SSDs relating to Rusafa and TWISS I are available to both parties. (See Docs. 321-5, 306-8.) The extent of destruction and whether the SSDs for TWISS II and IDN were destroyed remain unclear. (See Doc. 326-6, at 4 (stating that the preserved TWISS I SSDs appeared incomplete); Doc. 326-11, at 3 (stating that the preserved Rusafa SSDs “may still not include all of the files that originally were in the Government's source selection file for the Rusafa award”); Doc. 306-5, at 3 (describing the destruction of all physical copies of documents stored at Rock Island).) However, it is clear that: (1) the SSAs for each contract were required to retain SSDs explaining the rationale for the contract award; (2) DOJ had access to documents relating to Rusafa, the TWISS contracts, and IDN in 2021; (3) some of these documents are SSDs for Rusafa and TWISS I; (4) the Army destroyed all physical documents at Rock Island Arsenal in 2022 after DOJ visited the site in 2021; (5) some of the destroyed documents may have been SSDs for the contracts at issue; (6) and neither party has access to any SSDs for TWISS II and IDN.
G. EODT's Motion for Sanctions
*3 In its motion for spoliation sanctions, EODT requests that the Court impose sanctions in the form of “an adverse inference instruction on Relator's claims for the Rusafa and TWISS I contracts (and its task orders), and dismissal of (or in the alternative, an adverse inference instruction on) Relator's claims for the IDN and TWISS II contracts.”[4] (Doc. 306, at 3.) EODT contends that DOJ had a clear duty to preserve the files that were destroyed by the Army, and that it is prejudiced by the lack of SSDs for all four contracts listed above, as “Relator has alleged that the government relied on particular EODT statements that ‘fraudulently induced’ the award of the [contracts].” (Id.) EODT does not argue that Relator had a duty to preserve the SSDs, nor that Relator was culpable in the loss of such evidence.[5] (See Doc. 306.) Although Relator posits several theories in response, the core of Relator's argument is that he is not culpable for DOJ's failure to preserve evidence, a non-party in this case. (See Doc. 321, at 8–12, 26.)
II. STANDARD OF LAW
The authority to impose sanctions for spoliated physical evidence arises from “a court's inherent power to control the judicial process.” Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). As it relates to physical evidence, a court may sanction a litigant for spoliation of evidence if: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the party destroyed the evidence with a culpable state of mind; and (3) the destroyed evidence was relevant to the opposing party's claim or defense. Byrd v. Alpha Alliance Corp., 518 F. App'x 380, 383–84 (6th Cir. 2013) (citing Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir.2010)); McCarty v. Covol Fuels No. 2, LLC, 664 F. App'x 372, 378 (6th Cir. 2016). An obligation to preserve arises “when a party should have known that the evidence may be relevant to future litigation.” Byrd, 518 F. App'x at 384 (quoting Beaven, 622 F.3d at 553). In determining whether a party should have known that evidence may be relevant to future litigation, courts apply an objective, not subjective, standard. Id. A culpable state of mind “requires a showing that the party destroyed the evidence knowingly or negligently.” Id. (citation omitted). Finally, demonstrating that destroyed evidence was “relevant” requires “showing that the evidence would have been relevant to a contested issue ... such that a reasonable trier of fact could find that it would support [the moving party's] claim.” Id. (quoting Beaven, 622 F.3d at 554–55) (alteration in original). “The court may consider circumstantial evidence in analyzing the import or specifics of destroyed evidence.” Id.
[T]he point of the relevance prong of the spoliation analysis is not to inquire whether the lost or destroyed evidence was dispositive; rather, the party seeking the spoliation sanction must make a showing indicating that the destroyed evidence would have been relevant to the contested issue ... such that a reasonable trier of fact could find that it would support that claim.
[A] proper sanction will serve the purposes of leveling the evidentiary playing field and sanctioning the improper conduct. Because failures to produce relevant evidence fall along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality, the severity of a sanction may, depending on the circumstances of the case, correspond to the party's fault.
*4 Byrd, 518 F. App'x at 384 (quoting Adkins, 554 F.3d at 652). “A district court may impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence.” Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC, 774 F.3d 1065, 1070 (6th Cir. 2014).
III. ANALYSIS
A. Parties to a Qui Tam Action
As the Sixth Circuit explained in Byrd, sanctions are available when a “party” meets the three required factors. 518 F. App'x at 383–84. Under the FCA, private parties (i.e., relators) are empowered to sue “in the name of the Government.” United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 424 (2023) (quoting 31 U.S.C. § 3730(b)(1)). If a relator files suit under the FCA, the Government retains the right to intervene in the action. Id. at 425. When a relator brings suit under the FCA, “[h]e must file his complaint under seal, and serve both ‘[a] copy’ and supporting ‘material evidence’ on the Government alone.” Id. (citing 31 U.S.C. § 3730(b)(2)). The Government has 60 days following to decide whether to intervene in the case. Id. If the Government declines to intervene, it remains the “real party in interest,” as it is entitled to most of the relator's recovery. Id. (quoting United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 930 (2009)). As the “real party in interest,” the Government may intervene after the seal period if it shows good cause. Polansky, 599 U.S. at 425–26. Essentially, the relator is an agent of the Government. See United States ex rel. Holloway v. Heartland Hospice, Inc., 960 F.3d 836, 845 (6th Cir. 2020) (stating that “the qui tam relator is, in all cases, the government's agent under [the FCA]”).
In Polansky, the Government declined to intervene in a relator's FCA action after the initial seal period. 599 U.S. at 428. After the “case spent years in discovery,” the Government filed a motion to dismiss the case over the relator's objection. Id. On appeal, the Third Circuit affirmed the district court's grant of the Government's motion to dismiss, explaining that the Government's motion “was reasonably construed to include a motion to intervene.” Id. (citing Polansky v. Exec. Health Res. Inc, 17 F.4th 376, 383–88 (3d Cir. 2021)). The Supreme Court affirmed the decision of the Third Circuit, and further explained that a qui tam action “is an unusual creature,” in that the Government retains rights related to the action even as a non-party. Id. at 430. When the Government chooses not to intervene, however, “it is (by definition) not a party.” Id. As a non-party, the Government could not dismiss the suit under the FCA. Id. at 430–32. The Government's right to seek dismissal was predicated on its intervention. See id.
The Supreme Court further described the Government's status in qui tam suits after it declines to intervene in Eisenstein, another case in which a relator filed suit under the FCA and the Government declined to intervene. 556 U.S. at 930. After the district court dismissed the relator's action, he filed a notice of appeal fifty-four days later. Id. Under the Federal Rules of Appellate Procedure, a party must generally file notice of appeal within thirty days of the entry of judgment, but the Rules allow for sixty days when “the United States or an officer or agency thereof is a party.” Id. The relator argued that the sixty-day period applied to his suit “because the United States is a ‘party’ to every FCA suit.” Id. at 931. The Second Circuit rejected this argument, and the Supreme Court affirmed, explaining that “intervention is the requisite method for a nonparty to become a party to a lawsuit.” Id. at 933. The Supreme Court highlighted that Congress left the decision to intervene with the Government, as party status invites unique costs and benefits. Id. The Court cited Rule 37 of the Federal Rules of Civil Procedure as one cost unique to parties, as Rule 37 provides “for sanctions for noncompliance with certain party obligations.” Id. at 934. The Court distinguished a “party” from a “real party in interest,” stating that, “when, as here, a real party in interest has declined to bring the action or intervene, there is no basis for deeming it a ‘party’ for purposes of [the Federal Rules of Appellate Procedure].” Id. at 935. Thus, again the Government is not a party to a qui tam action when it declines to intervene. Id. at 937.
*5 District courts within the Sixth Circuit have also discussed the Government's status when it declines to intervene in a qui tam action. In United States v. UT Medical Group, Inc., a relator filed suit alleging violations of the FCA, and the Government declined to intervene. No. 12-CV-02139-JPM-TMP, 2013 WL 12149636, at *1 (W.D. Tenn. Aug. 15, 2013). The relator subsequently filed a motion to compel requesting that the Government produce evidence relating to his claims. Id. at *1–2. The Government opposed the motion, arguing that it was not a party to the action and that the relator was required to serve a subpoena to obtain the evidence under Rule 45 of the Federal Rules of Civil Procedure. Id. at *2. The Court rejected the relator's motion, explaining that the Government is “a third party for discovery purposes” when it declines to intervene.[6] Id. In U.S. ex rel. Sanders v. Allison Engine Co., the Court stated that, “while the Government remains the real party in interest when it chooses not to intervene, it does not become the relator's client, nor is the Government an actual party to the action.” 364 F. Supp. 2d 716, 718 (S.D. Ohio 2005) (internal citations omitted). Additionally, “because it is not a party to the action, the Government is not bound by the Federal Rules of Civil Procedure as they relate to discovery.” Id. at 719 (citing United States ex rel. Farrell v. SKF USA, Inc., No. 94-CV-157A, 1998 WL 265242, at *3 (W.D.N.Y. May 18, 1998)). As a result, unless the Government elects to intervene, it is not a party to a qui tam action.
B. Spoliation by a Non-Party
As stated above, courts have broad discretion to craft sanctions for spoliated evidence, and, thus, courts can impose sanctions when a non-party engages in spoliation. See Silvestri, 271 F.3d at 587, 591, 595 (affirming sanctions against the plaintiff when he retained access to evidence subsequently destroyed by a non-party); see also Cone v. Hankook Tire Co., No. 14-1122, 2015 WL 1277060, at *2 (W.D. Tenn. Mar. 20, 2015) (stating that, “[u]nder certain circumstances, the spoliation of evidence by one individual or entity may be attributable to another for the purposes of imposing sanctions”). However, any sanction must “serve both fairness and punitive functions” and “should have some correlation to the degree of fault.” Byrd, 518 F. App'x at 384; see Adkins, 554 F.3d at 652.
The “degree of fault” or culpability of a party is material to the decision to impose sanctions after a non-party loses or destroys evidence. In Adkins v. Wolever (“Adkins II”), a state prisoner sued a corrections officer for assault. 692 F.3d 499, 501 (6th Cir. 2012). After the alleged assault, an inspector at the prison reviewed video footage of the area where the alleged assault occurred. Id. The video footage was subsequently lost or destroyed. Id. The plaintiff filed for sanctions against the defendant. Id. Although the defendant “had the practical ability to obtain prison records for litigation purposes,” he retained no control over and never had access to the footage. Id. at 502–03. The Sixth Circuit affirmed the finding of the district court that “[the defendant] was not culpable because he had no control over the evidence.” Id. at 506. Without culpability, sanctions were not warranted.
In Teeples v. BIC USA Inc., the defendant moved for sanctions against the plaintiff after evidence was destroyed by a non-party with a relationship to the plaintiff. No. 3:20-CV-00941, 2023 WL 6393171, at *2–3 (M.D. Tenn. Sept. 29, 2023). The Court denied the defendant's motion, stating that there was “minimal evidence that Plaintiff was contemplating litigation” when the non-party destroyed evidence pertaining to the litigation, and that the plaintiff was “unable to ensure that the evidence was preserved” when it was destroyed.[7] Id. at *4. Additionally, the Court found that there was “no suggestion” that the non-party was acting on behalf of the plaintiff when the evidence was destroyed. Id. Again, the plaintiff lacked the culpability that would warrant sanctions.
*6 A party's prior access to evidence that is subsequently destroyed by a non-party may support a finding of culpability. In Lexington Ins. Co. v. Tubbs, the Court imposed sanctions when the agent of a party destroyed evidence after the party had prior access to the evidence, even though the party lacked control over it. No. 06-2847-STA, 2009 WL 1586862, at *1–3 (W.D. Tenn. June 3, 2009); see also Silvestri, 271 F.3d at 587, 591, 595. Thus, a party's culpability is affected by its prior access to destroyed evidence, even if the party does not control the evidence.
C. The Government and DOJ are not a “Party” to Relator's Action
In its motion for sanctions, EODT asserts that DOJ (i.e., the Government) spoliated physical evidence. (Doc. 306, at 2.) For spoliation of physical evidence, the Beaven standard requires that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; and (2) the party destroyed the evidence with a culpable state of mind. Beaven, 622 F.3d at 553 (emphasis added); see Byrd, 518 F. App'x at 383–84. A preliminary question that the Court must answer is whether DOJ is a party to Relator's action.
EODT avers that as the “real party in interest,” DOJ remains a real party to the action. (Doc. 306, at 9.) Further, EODT argues that the Government's duty to preserve evidence remains even if it declines to intervene. (Doc. 326, at 7.) While there is a lack of case law directly addressing whether a relator in a qui tam action can be sanctioned for the Government's spoliation when the Government does not intervene, the precedent available does not support EODT's arguments. Polansky establishes that even as the “real party in interest,” the Government is not an actual party to a qui tam suit “by definition” when it declines to intervene. 599 U.S. at 425, 430. Additionally, EODT only cites cases in which the Government did intervene to support its argument that the Government has a duty to preserve evidence regardless of its intervention. (Doc. 326, at 6–7); see United States' Third Amended Complaint at ¶ 2, Miller v. Holzmann, No. CA 95-01231 RCL/JMF, 2007 WL 172327 (D.D.C. Jan. 17, 2007) (“The United States files this Third Amended Complaint in Intervention pursuant to 31 U.S.C. § 3730(b)(4)(A).”); U.S. ex rel. Baker v. Cmty. Health Sys., Inc., No. CIV. 05-279 WJ/ACT, 2012 WL 12294413, at *1 (D.N.M. Aug. 31, 2012) (“The Government, through the DOJ, filed its Notice of Intervention on February 20, 2009”). Thus, EODT fails to support its assertion with any controlling precedent. Other cases in this Circuit have held that the Government is considered a non-party for the purposes of discovery when it does not intervene. UT Med. Grp., 2013 WL 12149636 at *2; Sanders, 364 F. Supp. at 718. Eisenstein specifically highlights the possibility of sanctions as a burden that the Government incurs when it elects to intervene and become a party in a qui tam suit. See 556 U.S. at 933–34. Because the Government has not intervened DOJ is not a party to Relator's action.
D. Relator Lacks Sufficient Culpability for Sanctions
Although DOJ is not a party to Relator's suit, sanctions may still be appropriate if Relator had control over the destroyed evidence and is sufficiently culpable for its destruction. See Beaven, 622 F.3d at 553; Cone, 2015 WL 1277060 at *2. In its motion, EODT makes no assertions as to Relator's control over the purportedly destroyed SSDs. (See Doc. 306.) EODT states, in a single paragraph in its reply, that:
*7 Relator received access to the DOJ's selected excerpts from the JCC-IA source selection files while this case remained under seal. In fact, he used and quoted from them in his Second Amended Complaint. Certainly, Relator's counsel was better positioned than EODT to convey to DOJ the importance of preserving these files for use in litigation where he and his lawyers communicated with DOJ, on average, nearly 15 times per week between 2018-2023.
(Doc. 326, at 11) (internal citations omitted) (emphasis in original). The Court finds that this is insufficient to show Relator's control over the lost SSDs. This assertion is also insufficient to show Relator's culpability in the purported destruction of the SSDs. To sanction a party for the destruction of evidence by a non-party, the party must have typically had prior access to the destroyed evidence. See Tubbs, 2009 WL 1586862 at *1–3; Silvestri, 271 F.3d at 587, 591, 595. Here, there is no evidence suggesting that Relator had access to the missing SSDs, nor does EODT allege Relator had access. (See Doc. 326, at 11.) In Adkins II, the alleged spoliator “had the practical ability to obtain prison records for litigation purposes,” yet the Court found the rejection of sanctions appropriate when he retained no control over or access to the lost evidence. See 692 F.3d at 502–03, 506. Here, EODT does not claim that Relator had the practical ability to obtain the lost SSDs from DOJ or the Army, only that he was “better positioned than EODT to convey to DOJ the importance of these files.” (Doc. 326, at 11.) Further, it is unclear what files the Army destroyed at Rock Island Arsenal in 2022. It is possible the Army destroyed SSDs for the contracts at issue in this motion, considering: (1) SSAs are required to produce SSDs for contract awards; (2) DOJ obtained SSDs for Rusafa and TWISS I at Rock Island; (3) these SSDs may be incomplete; (4) DOJ accessed other documents relevant to TWISS II and IDN at Rock Island; and (5) all physical copies of the documents housed at Rock Island were destroyed in 2022. However, it remains unclear whether additional SSDs were destroyed, and whether DOJ ever accessed additional SSDs.[8] (See Doc. 270-6, at 330.) EODT does not allege that Relator knew of additional SSDs before they were possibly destroyed. (See Doc. 306; Doc. 326, at 11.) Given these facts, Relator lacks the culpability required for sanctions, and as such, the Court will not sanction Relator for the actions of a non-party.
IV. CONCLUSION
For the reasons stated herein, EODT's motion for sanctions (Doc. 306) is DENIED. While it is regrettable that the parties lack access to SSDs that are potentially relevant to Relator's claims and EODT's defenses, EODT has failed to show sanctions are warranted.
SO ORDERED.
Footnotes
EODT's motion for sanctions only addresses these contracts. (See Doc. 306.) EODT does not argue that DOJ spoliated any evidence related to task orders issued to EODT under Contract W912DY-04-D0018 (“Contract 18”).
EODT claims that this subpoena also required the production of documents related to IDN. (Doc. 306, at 5.) Presumably, this refers to the language in the subpoena requiring EODT to produce all contract-related documents for any contract “entered into from May 1, 2004 through November 1, 2017.” (Doc. 306-9, at 10.)
The evidence EODT cites in its motion does not confirm SSDs relating to these contracts were destroyed. Rather, all documents in the warehouse DOJ visited at Rock Island Arsenal were destroyed, including those that DOJ accessed in 2021. (See Doc. 270-6, at 329–30; Doc. 306-5, at 3; Doc. 306-4, at 3–5.) The documents preserved for trial are those that DOJ scanned or photographed in 2021. (See Doc. 270-6, at 330 (stating that the “scans and photos” from DOJ's visits have been produced to the parties).)
EODT now moves for dismissal of Relator's claims as to all of these contracts after DOJ explained that it requested the Army preserve all physical copies of the documents it viewed at Rock Island prior to issuing a litigation hold. (See Doc. 345, at 5 n.2; Doc. 345-1.)
EODT argues in reply to Relator's response to EODT's motion that Relator should have conveyed the importance of the SSDs to DOJ before they were purportedly destroyed. (Doc. 326, at 11.)
The Court rejected the relator's motion for several reasons, this being one of them. See UT Medical Group, 2013 WL 12149636, at *2–3.
The Court declined to rule on sanctions pertaining the destruction of other evidence due to deficiencies in the record. Teeples, 2023 WL 6393171, at *4–5.
DOJ states that during its visits to Rock Island, DOJ “scanned copies or took photographic images of documents or excerpts of documents from files [related to Rusafa, the TWISS contracts, and IDN]. Those scans and photos have been produced to the parties in this litigation.” (Doc. 270-6, at 330.)