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Harmon v. United States

United States District Court, D. Idaho

March 24, 2017

DOUGLAS G. HARMON, Plaintiff,
v.
THE UNITED STATES OF AMERICA, acting by and through BUREAU OF INDIAN AFFAIRS, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. Lynn Winmill, United States District Court Chief Judge

         INTRODUCTION

         Pending before the Court is Defendant United States of America's Motion for Summary Judgment (Dkt. 13) and Plaintiff's Motion for Spoliation Sanctions (Dkt. 24). The Court heard oral argument on February 3, 2017 and took the motions under advisement. For the reasons expressed below, the Court will grant in part and deny in part both motions.

         BACKGROUND

         Plaintiff Doug Harmon filed this action against the United States of America and the Bureau of Indian Affairs (“BIA”) in connection with BIA's operation of the Fort Hall Irrigation Project (“FHIP”). Harmon alleges that BIA failed to properly maintain and administer the water delivery systems on the FHIP, resulting in multiple flooding events in 2012 that damaged crops on a 115-acre parcel where he farmed potatoes.

         The FHIP provides irrigation water to the Fort Hall Indian Reservation through the use of storage reservoirs, diversion dams, canals, and ditches. Def. SOF2, Dkt. 13-1. FHIP ditches are divided into at least three categories: “lateral ditches” owned by BIA; “service ditches” owned by BIA; and “farm ditches” owned by individuals. Def. SOF ¶ 3. The structures at issue here include:

. The “Main Canal, ” a primary lateral which carries water to various delivery points, including the Park Lateral.
. The “Park Lateral, ” a canal that provides water to several properties and farm ditches adjacent to the Harmon property.
. The “Yupe Ditch, ” a farm ditch which extends off the Park Lateral along the southern border of the Harmon farm and supplies water to the Yupe and Lutz farms.
. The “Jackson/Devinney Ditch, ” a farm ditch which extends off the Park Lateral to the southeast of the Harmon farm and supplies water to the Jackson and Devinney farms.

Pl. SOF at 2-3, Def. SOF ¶ 3.

         Day-to-day operations and maintenance of the FHIP is performed by BIA staff, including Irrigation System Operators (“Ditchriders”) and Maintenance Workers, in accordance with BIA regulations and an internal project manual (“O&M Manual”). Pl. SOF at 7, Dkt. 16-1. Ditchriders unlock canal headgates when users are scheduled to receive their water, control the water levels in canals, clean trash racks serving the park lateral, log complaints from water users, and canvas the irrigation system for damages. Pl. SOF at 11; Def. SOF ¶ 8. Ditchriders can place locks on headgates to prevent them from being opened, or place collars on headgates to limit water flow. Pl. SOF at 10. Maintenance workers perform necessary maintenance on the irrigation structures, including weed-spraying and ditch-burning. FHIP O&M Guidelines pt. 1, Dkt. 13-5, at 51. BIA possesses rights-of-ways which allow the agency to gain access to project infrastructure for maintenance purposes. Idaho Code Ann. § 42-1204.

         Harmon alleges that his property was flooded on at least five separate occasions in 2012 due to the negligence of BIA: on July 4, August 6, August 20, September 25, and September 26. Pl. SOF at 12-13; Def. SOF ¶ 14. On each occasion, Harmon contacted BIA personnel, who responded to the complaints and attempted to identify the source of the flooding. Pl. SOF at 13; Def. SOF at ¶¶ 12-13. The Harmons had also complained to BIA personnel about flooding on their property prior to 2012. Pl. SOF at 11; McKean Dep. 40:12-40:22, Dkt. 16-17.

         The flooding events that occurred on July 4, 2012 and August 6, 2012 came from the Ellsworth property located on the east side of the Harmon property. D. Harmon Dep. 36:24-38:14, Dkt. 16-3; G. Harmon Dep. 18:20-21:5, Dkt. 16-4; Pl. Mot. Summ. J. Ex. 6 at 8, Dkt. 13-8. Gary Ellsworth had taken over the farm when his father passed away and experienced problems learning how to properly flood irrigate the fields. Def. SOF ¶ 16. Due to the nature and slope of his land, water from the Ellsworth property would enter Plaintiff's fields when Ellsworth failed to properly monitor his irrigation. Def. SOF ¶ 16. The flooding that occurred on August 20 and September 26 was caused by a headgate that had been opened too wide, allowing excess water to wash out part of the Jackson/Devinney ditch and run into Plaintiff's field. Def. SOF at 14; Pl. SOF ¶¶ 18, 19. Finally, the September 25 flooding was caused by a gopher hole in the Yupe ditch. Def. SOF at 15. The Yupe ditch was filled with grass and in generally poor condition at that time, but BIA performed maintenance work on the ditch after the September 25 flooding incident. Pl. SOF at 13.

         On or about June 30, 2014, Plaintiff filed an administrative tort claim for damages, as required by 28 USC § 2675, alleging that these flooding incidents were a direct and proximate cause of BIA's negligent failure to properly monitor water flow, lock and collar headgates, and keep surface ditches maintained. The government denied the claim on December 5, 2014, and Harmon filed his complaint in the instant action on May 21, 2015.

         ANALYSIS

         1. Motion for Spoliation Sanctions

         A. Legal Standard

         Spoliation is defined as the “destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation” once the duty to do so has been triggered. Kearney v. Foldy & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (internal quotation and citation omitted). A party seeking sanctions for spoliation bears the burden of establishing that the opposing party (1) destroyed relevant evidence and (2) had an obligation to preserve the evidence when it was destroyed or altered. Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015). An obligation to preserve attaches when a party knows or should reasonably know that the evidence is potentially relevant to litigation. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). Once such a showing is made, the district court has inherent discretionary authority to levy sanctions. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).

         Spoliation sanctions may include dismissal of claims, exclusion of evidence, or an instruction that the jury may or must presume that the destroyed evidence, if produced, would have been adverse to the party who destroyed it. See Unigard Sec. Ins. Co. v. Lakewood, 982 F.2d 363, 369 (9th Cir. 1992). When considering the appropriate sanction, courts consider the: “(1) willfulness or bad faith of the party responsible for loss of evidence; (2) degree of prejudice sustained by opposing party; and (3) what is required to cure prejudice.” Miller v. Four Winds Int'l Corp., 827 F.Supp.2d 1175, 1181 (D. Idaho 2011).

         B. Existence of Spoliation

         Harmon seeks spoliation sanctions for the government's inability to produce certain maintenance logs and other records maintained by BIA related to this matter. These records include: (i) MAXIMO records; and (ii) daily logbooks of Maintenance Supervisor Steven Guardipee, Watermaster Clifford Buckskin, Ditchrider Jesse Rodriguez, and Ditchrider Nick Broncho. The Court begins by addressing whether Harmon has sufficiently demonstrated spoliation of these records, then moves to a determination of the appropriate sanction.

         (i) MAXIMO Records

         Plaintiff argues that the government's failure to produce MAXIMO records of BIA's maintenance work on ditches adjacent to the Harmon parcel constitutes spoliation. MAXIMO is a commercial software used to track maintenance operations for all DOI agencies, including “scheduling, preventive maintenance, work orders, labor and expense tracking, procurement and reporting.” FHIP O&M Guidelines pt. 1, at 16, Dkt. 13-5. “[U]se of MAXIMO is mandated for all agencies by [Department of Interior] policy.” Id. at 16. Accordingly, the FHIP's O&M Guidelines require entry of maintenance problems and repairs into the MAXIMO system. FHIP O&M Guidelines pt. 2, at 4-7, Dkt. 13-6. The FHIP Maintenance Supervisor, Steven Guardipee, has primary responsibility for ensuring that work orders are entered into MAXIMO. FHIP O&M Guidelines pt. 1 at 48, 55. Each year, FHIP personnel are also required to compile an annual MAXIMO maintenance report with “1) descriptions of maintenance activities; and 2) cost estimates for each item, broken down by personnel, personnel costs, equipment and supplies.” FHIP O&M Guidelines pt. 2, at 6.

         BIA employees acknowledged that they performed maintenance work on the Yupe ditch before and after the flooding events in 2012. See, e.g., Bollinger Dep. 17:4-16, 25:8-25:14, 30:18-30:19, 223:2-223:3, Dkt. 16-11; Buckskin Dep. 108:23-109:3, Dkt. 16-15. However, the government was unable to find any MAXIMO records of such work. Steven Guardipee acknowledged that such FHIP maintenance projects should have been entered into MAXIMO but could not recall whether the MAXIMO records were ever created. Guardipee Dep. at 43:22-44:5; 49:14-50:6, Dkt. 16-20. He explained that “sometimes stuff got overlooked.” Id. at 43:1-44:5, 49:5-9. On this basis, the Court concludes that BIA simply neglected to document certain FHIP maintenance and repair work in MAXIMO. While there is no evidence that the sough-after evidence was lost or destroyed, this failure to create MAXIMO entries nonetheless violated BIA's clear duty under agency policy.

         The government argues that even if BIA was obligated to create these MAXIMO records, the spoliation doctrine does not apply to evidence that never existed. The failure to create evidence, without more, would not ordinarily warrant a spoliation sanction. See, e.g., Lamon v. Adams, No. 1:09-cv-00205, 2015 WL 1879606, at *3 (E.D. Cal. Apr. 22, 2015) (“Nor can a Court issue sanctions based on a party's failure to create evidence”). However, the prophylactic and punitive justifications underlying the spoliation doctrine may justify sanctions where a party fails to create evidence in violation of a statutory, regulatory, or internal policy obligation. See, e.g., Ramirez v. Pride Dev. & Const., 244 F.R.D. 162, 164 (E.D.N.Y. 2007) (imposing an adverse inference instruction as a penalty for the defendant's failure to create records pursuant to New York Labor Law); Smith v. United States, 128 F.Supp.2d 1227, 1233 (E.D. Ark. 2000) (imposing an adverse inference instruction as a penalty for physician's failure to dictate post-surgical notes, in violation of hospital procedure).

         The question remains, however, whether the violation of a records-retention law may constitute a breach of duty sufficient to impose a spoliation sanction. Several circuit courts of appeals have answered this question in the affirmative, where: (1) the movant was a member of a class that the records-retention law sought to protect and (2) imposing a sanction would further the law's purpose. See, e.g., Talavera v. Shah, 638 F.3d 303, 311 (D.C. Cir. 2011) (violation of OPM and EEOC document-retention regulations pertaining to Title VII complains warranted a spoliation sanction); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 108-09 (2d Cir. 2001) (“[W]here, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.”); Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998) (“The violation of a record[-]retention regulation creates a presumption that the missing record contained evidence adverse to the violator.”); Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994) (plaintiff “was entitled to the benefit of a presumption that the destroyed documents would have bolstered her case” where employer violated record retention regulation); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th Cir. 1987) (plaintiff was entitled to a presumption that documents destroyed in violation of Title VII recordkeeping requirements would have bolstered her case); Matteo v. Kohl's Dep't Stores, Inc., 533 F.App'x 1, 3 (2d Cir. 2013) (upholding district court's imposition of sanctions for Department Store's failure to preserve video footage in violation of internal policies). But see Lamon v. Adams, No. 1:09-CV-00205-LJO, 2015 WL 1879606, at *2 (E.D. Cal. Apr. 22, 2015) (violation of a state prison record-retention regulation did not provide a basis for a court's imposition of spoliation sanctions).

         The piecemeal enactment and amendment of the Federal Records Act make it difficult to identify its overarching “purpose.” The Federal Records Act is a compilation of statutes that collectively set forth federal agencies' records creation, management, and disposal duties. See 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq.[1]These provisions require the head of each federal agency to “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency[.]” 44 U.S.C. § 3101. In addition, the Archivist of the United States is to “provide guidance and assistance to ...


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