United States District Court, D. Idaho
DOUGLAS G. HARMON, Plaintiff,
THE UNITED STATES OF AMERICA, acting by and through BUREAU OF INDIAN AFFAIRS, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill, United States District Court Chief Judge
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.
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.
FHIP provides irrigation water to the Fort Hall Indian
Reservation through the use of storage reservoirs, diversion
dams, canals, and ditches. Def. SOF ¶
2, 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
. 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.
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.
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,
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
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.
Motion for Spoliation Sanctions
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.
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).
Existence of Spoliation
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.
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,
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
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
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).
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.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 ...