The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUMDECISION AND ORDERRESPOLIATIONOF EVIDENCEONHISAWCLAIM
The Court has before it motions to dismiss filed by both defendants. They seek to dismiss the claims of plaintiff Charles Hisaw on the ground that he destroyed evidence after knowing that this lawsuit was filed. The motions are fully briefed and at issue. For the reasons expressed below, the Court will deny the motions.
Plaintiff Hisaw has a crop damage claim for 360 acres of safflower in 2000 and 660 acres of barley in 2001. He also has a claim for his inability to rent out his land and sugar beet shares in 2002, and for ultimately being forced to sell his farm at a reduced price due to Oust contamination.
The last year Hisaw planted crops was 2002. After the 2002 crop year, Hisaw claims the banks cut off his financing, causing him to stop farming and move to Montana.
See Hisaw Affidavit (Dkt. 1857-2) at ¶ 4. During that move, he transported about "25 boxes" of "farming records" to Montana in a 30-foot semi-trailer. Id. at ¶ 5-6.
During the trip, the boxes "tipped over and many records spilled into a pile on the floor of the trailer." Id. at ¶ 8. He made no attempt to reorganize the records, id. at ¶ 8, and simply "left them in there for quite a few years." Hisaw Deposition at p. 107.
Later, when he was preparing the trailer for sale, he "discovered that the trailer had leaked [and] the documents had become wet, and they were moldy, stuck together, and at least partially illegible." Id. at ¶ 9. He "did not believe [the documents] had any significance to this litigation" and thus took them to a landfill and disposed of them. Id. At the time he dumped the documents in the landfill, he was aware that this lawsuit had been filed and that his crop damage allegations were part of this lawsuit. See Hisaw Deposition at p. 108.
In his affidavit, Hisaw states that the documents he placed in the trailer, and dumped in the landfill, "were older records dating from about 1969 through the 1980s," and that his "more recent farming records" were transported in his pickup truck. Id. at ¶ 7. He retained these more recent records and produced them in this litigation. Id. at ¶ 10.
Hisaw did not make this distinction in his deposition testimony, where he testified at one point that with regard to the documents in the trailer, "all my paperwork was in there." See Hisaw Deposition at p. 54. At another point in his deposition he testified similarly that the trailer contained "one huge pile of everything for 35 years of farming."
Plaintiffs' counsel characterizes Hisaw's deposition testimony as a "mistake" because he failed to recall that he had produced records in this litigation in 2005, and so could not have had all his records in the trailer. See Plaintiffs' Response Brief (Dkt. 1857) at p. 6. The Court agrees. The record shows that Hisaw produced over 1,000 pages of farm records and tax records during discovery, and so all his records were obviously not in the "wet mess" of trailer documents dumped in the landfill.
Nevertheless, the fact remains that Hisaw disposed of some of his farm records after knowing that this lawsuit -- containing his claims -- had been filed. As a sanction for this conduct, ...