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McQueen v. Aramark Corp.

United States District Court, D. Utah, Central Division

November 29, 2016

WHITNEY MCQUEEN and JENNY WESENBERG, individually and as Heirs to the Estate of ALEC MCQUEEN, DECEASED, Plaintiffs,
ARAMARK CORPORATION, a Delaware corporation; ARAMARK SPORTS AND ENTERTAINMENT SERVICES LLC, a Delaware limited liability company; and KAP ELECTRIC, INC., a Utah Corporation; Defendants.

          Dale A. Kimball District Judge.


          PAUL M. WARNER United States Magistrate Judge.

         District Judge Dale A. Kimball referred this matter to Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A).[1] Before the court is Whitney McQueen et al.'s (collectively, “Plaintiffs”) Motion to Compel Production of Work Orders.[2] The court has carefully reviewed the motion and memoranda submitted by the parties. Pursuant to Civil Rule 7-1(f) of the United States District Court for the District of Utah Rules of Practice, the court elects to determine the motion on the basis of the written memoranda and finds oral argument would not be helpful and is unnecessary. See DUCivR 7-1(f).


         The current discovery dispute involves purported work orders reflecting electrical work performed at Bullfrog Marina ‘A' Dock (“‘A' Dock”) prior to the to the June 10, 2014 incident at issue in this case, which resulted in the death of Alec McQueen (“McQueen”). On August 15, 2014, Plaintiffs sent a preservation letter to Aramark Sports and Entertainment Services, LLC's (“Defendant”) placing it on notice that litigation was imminent and that documentation relevant to the incident was to be preserved.[3]

         During his February 16, 2016 deposition, Defendant's employee, Joe Ligon (“Ligon”), recalled the existence of two work orders identifying electrical work performed on ‘A' Dock prior to McQueen's death on June 10, 2014.[4] Ligon stated that he thought there were “only two work orders done on the dock” for “electrical upgrades” on “the entire ‘A' Dock.”[5] But Ligon also stated that he was “not sure” about that but it was his “[b]est recollection” in the moment.[6]Ligon further testified that after one year, Defendant destroys all maintenance documents as part of its business practice.

         Ten days after Ligon's deposition, Plaintiffs attempted to obtain those work orders through a Request for Production of Documents.[7] Specifically, Request for Production No. 15 sought the production of “a complete copy of any and all work orders, correspondence or other documentation reflecting work performed on [‘A' Dock] for the two years preceding the incident in this case.”[8] In response, Defendant indicated that it had already produced all responsive documents and that the work orders identified by Ligon “don't exist.”[9]

         The parties then conferred by telephone. Defendant explained that Ligon had been mistaken at his deposition regarding the two work orders. Defendant also explained the efforts that Ligon and others had made to locate those work orders and other responsive discovery. Defendant offered to produce work orders generated after McQueen's death, as well as a declaration from Ligon stating that he was mistaken in his recollection of the two work orders. Plaintiffs declined and indicated they would be filing a motion to compel.

         In their motion to compel, Plaintiffs seek the production of the work orders at issue as well as attorneys fees. Defendant responds by asserting that Plaintiffs mischaracterize Ligon's testimony and that the work orders cannot be produced because they never existed. Attached to its opposition memoranda, Defendant provided Ligon's declaration, as well as the work orders created after McQueen's death. In their reply brief, Plaintiffs assert that the work orders submitted with Ligon's deposition were responsive to their initial discovery requests but that Defendant failed to provide them or supplement their discovery responses. Plaintiffs further argue that Defendant produced a Purchase Order Report demonstrating that KAP Electric (“KAP”)[10] had performed work on the marina that involved the replacement of two electrical receptacles eight days before McQueen's death.

         In an order dated September 2, 2016, the court instructed the parties to provide supplemental briefing in relation to the instant motion.[11] Both parties were instructed to address Rule 37(e) of the Federal Rules of Civil Procedure with regard to Defendant's failure to preserve the work orders that are the subject of the instant motion after it received Plaintiffs' August 15, 2014 preservation letter. Defendant was further ordered to: (1) include a detailed explanation as to the steps it had taken to preserve evidence after receipt of Plaintiffs' August 15, 2014 preservation letter, (2) to explain why it had failed to provide documents responsive to Plaintiffs' discovery requests or supplement those responses until filing its memorandum in opposition to the instant motion, and (3) to explain the discrepancy between the Purchase Order Report showing that electrical work was done prior McQueen's death and Defendant's statement that work orders preceding his death “do not exist and have never existed.”[12]

         In response to the court's Order to Show Cause, Defendant conceded that electronically stored information (“ESI”) and other physical documents were destroyed because Defendant failed to relay necessary preservation instructions to the appropriate individuals.[13] Defendant proffers that it did not realize that it failed to inform its employees about the litigation hold until December 2015. As a result, the earliest work order preserved was dated December 30, 2014- over six months after McQueen's death. Nevertheless, Defendant asserts that although its maintenance work orders predating the incident were destroyed, “the lost work orders are not relevant to this case, and Plaintiffs are not prejudiced by the loss in any material way.”[14] And, Defendant claims, the destroyed information can still be obtained in one or both of two ways: (1) through the testimony of its maintenance managers, Jeff Banfill (“Banfill”) and Tad Schurr (“Schurr”), who would testify that there was no electrical maintenance on the shore power pedestals on ‘A' Dock prior to McQueen's death;[15] and/or (2) through discovery from KAP because KAP performed all major electrical work at the marina, and presumably would have records of the work it had done. Defendant also contends that it did not previously produce the work orders attached to Ligon's declaration because Plaintiffs' discovery request did not seek information from after McQueen's death and in the telephone conference Plaintiffs' counsel indicated that he did not want them. Defendant explains the discrepancy between the Purchase Order Report and lack of corresponding work orders by explaining that, as a practice, it did not generate work orders for the work that KAP performed, it only created them for routine maintenance performed by Defendant's employees.

         In their supplemental brief, Plaintiffs argue that sanctions are appropriate for Defendant's failure to preserve ESI, work orders, and any other discovery that should have been preserved from the litigation hold. Plaintiffs contend that Defendant's failure to preserve records was intentional and that Plaintiffs have been prejudiced as a result. While Plaintiffs assert that this case will be tried in a bench trial before Judge Kimball, it appears that Defendant has requested a trial by jury. This matter is set for a five-day jury trial beginning on July 10, 2017.[16]Nevertheless, Plaintiffs seek an adverse inference (either as a jury instruction or as Judge Kimball adopting it during a bench trial) that Defendant “recently performed maintenance, inspected[, ] repaired[, ] or otherwise performed work on the shore power pedestal prior to the death of McQueen.”[17]

         Further, on November 23, 2016, Plaintiffs provided an additional supplemental brief in which Plaintiffs request terminating sanctions in light of Banfill's recent deposition.[18]


         I. Changes to Deposition Testimony Under Rule 30(e)

         As an initial matter, to the extent that Defendant is attempting to alter Ligon's deposition testimony through his declaration under Rule 30(e) of the Federal Rules of Civil Procedure, that request is DENIED. Ligon was deposed on February 16, 2016. On April 20, 2016, Defendant submitted Ligon's declaration with its opposition memorandum. However, under Rule 30(e), the deponent has 30 days after being notified that the transcript or recording is available in which to review and/or make changes to his testimony. See Fed. R. Civ. P. 30(e). Defendant's attempt was made well after the thirty day deadline had passed. However, even assuming the proposed changes had been provided timely, “material changes to deposition testimony [which controverts] the original testimony” are not acceptable. Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (finding the purpose of Rule 30(e) to be an allowance for the correction of any substantive error made by “the reporter”) (citation omitted). “The Rule cannot be interpreted to alter what was said under oath.” Id. This prevents a deponent from “return[ing] home and plan[ing] artful responses” after a deposition. Id. Thus, the court refuses to permit Defendant to substitute Ligon's declaration in place of his deposition testimony.

         II. Spoliation ...

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