United States District Court, D. Utah, Central Division
MEMORANDUM DECISION & ORDER ON DEFENDANT'S
RENEWED MOTION FOR SPOLIATION SANCTIONS
Benson United States District Judge.
matter is before the Court on Defendant Ford Motor
Company's (“Ford”) Renewed Motion for
Spoliation Sanctions (Dkt. No. 86), Defendant's Motion to
Exclude Opinions of Jeff Morrill (Dkt. No. 80), and
Defendant's Motion to Exclude Opinions of Tad Norris
(Dkt. No. 81). At oral argument on the motions, Ford was
represented by Clay A. Guise, Tracy H. Fowler and Paul W.
Shakespear. Plaintiff Bear River Mutual Insurance Company
(“Bear River”) was represented by Eric Olsen and
Sarah Marie Wade. At the conclusion of the hearing, the Court
took the matter under advisement. Now, having further
considered the law and facts relating to the motions, the
Court renders the following Memorandum Decision and Order.
facts of this case are generally undisputed and have been set
forth in detail, for the most part, in the Court's prior
Order on Defendant's Motion for Spoliation Sanctions.
(Dkt. No. 35.) In sum, Plaintiff Bear River claims that the
speed control deactivation switch (SCDS) in the 1994 Ford
F-150 pickup truck owned by its insureds, Jeff and Julie
Schoepf, was defective and caused a fire that spread from the
truck to the Schoepf's house. Bear River's claim is
based on an investigation conducted by Bear River's
expert, Tad Norris, a fire investigator with IC Specialty
Services, who was assigned to inspect the scene and determine
the origin of the fire. On behalf of Bear River, Mr. Norris
inspected the scene and decided what evidence should be
preserved without Ford's presence, consent or input. As
part of that investigation, Mr. Norris removed the SCDS'
hexport and electrical housing and claims that he sent both
to another expert, Jeff Morrill, who requested an examination
of the hexport. Mr. Morrill acknowledged receipt of the
hexport, but claims he never received the electrical housing.
Following Norris' inspection and investigation, the scene
of the fire was destroyed. Additionally, Plaintiff lost the
hexport before it could be inspected and tested by Ford, and
Plaintiff lost the electrical housing before inspection
and/or testing by anyone.
outset of this case, given Plaintiff's failure to include
Ford in the scene inspection combined with Plaintiff's
loss of critical evidence, Ford filed a Motion for Spoliation
Sanctions, requesting dismissal of the case in its entirety.
(Dkt. No. 20.) At that same time, the parties filed a
“Joint Motion to Stay Discovery” in order to
“conserve resources while the parties and Court address
the viability of this case.” (Dkt. No. 18.)
August 12, 2014, following briefing and oral argument on
Ford's Motion for Spoliation Sanctions, the Court entered
an order that granted, in part, Ford's motion for
spoliation sanctions. (Dkt. No. 35, Order on Defendant's
Motion for Spoliation Sanctions.) The Court's Order
recognized the culpability of Bear River and the resulting
prejudice to Ford, but stopped short of dismissing this
action based on the information that was then-known regarding
Mr. Norris'scene inspection and the loss of the SCDS.
two years later, and following the completion of expert
discovery, Ford filed the motion now before the court - a
Renewed Motion for Spoliation Sanctions - once again
requesting dismissal of the case. Bear River opposed the
motion, arguing that Ford's “renewed” motion
“proffers no substantial new evidence or
arguments” and is therefore an improper motion to
reconsider that should be denied. (Dkt. No. 98, Pl.'s
Opp'n at 6, 11.) Ford acknowledges that its initial
motion for spoliation sanctions generally identified the same
issues - Bear River's failure to preserve the scene and
the inadequate testing and subsequent loss of the hexport for
the SCDS. However, Ford asserts that during the two and
one-half years since Ford filed its initial motion the
evidence relating to those issues has developed and
significantly changed. According to Ford, these subsequent
developments fundamentally alter the spoliation analysis and
merit dismissal of the case.
courts possess inherent powers necessary “to manage
their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Chambers v.
NASCO, Inc., 501 U.S. 32, 43 (1991). Among those
inherent powers is “the ability to fashion an
appropriate sanction.” Id. at 44; see also
Smith v. Northwest Fin. Acceptance Inc., 129 F.3d 1408,
1419 (10th Cir. 1997 (“[A] federal court
possesses the authority to impose . . . sanctions under its
inherent power to control and supervise its own
proceedings.”); Martinez v. Roscoe, 100 F.3d
121, 123 (10th Cir. 1996) (providing a district
court's imposition of sanctions under its inherent power
is reviewed for abuse of discretion).
deciding whether to sanction a party for the spoliation of
evidence, courts have considered a variety of factors, two of
which generally carry the most weight: (1) the degree of
culpability of the party who lost or destroyed the evidence,
and (2) the degree of actual prejudice to the other
party.” Jordan F. Miller Corp. v. Mid-Continent
Aircraft Services, Inc., 139 F.3d 912, 1998 WL 68879
(10th Cir. 1998) (unpublished) (citing Schmid
v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.
1994)); Dillon v. Nissan Motor Co., 986 F.2d 263,
67-68 (8th Cir. 1993); Vasquez-Corales v.
Sea-Land Serv., Inc., 172 F.R.D. 10, 13-14 (D.P.R. 1997)
(collecting cases). In applying this standard, the Court
remains mindful that “a court should impose the least
onerous sanction that will remedy the prejudice and, where
applicable, punish the wrongdoer and deter future
wrongdoing.” Jordan F. Miller Corp., 139 F.3d
912, 1998 WL 68879, at *6. And “dismissal is usually
appropriate only where a lesser sanction would not serve the
interest of justice.” Id. (quoting Meade
v. Grubbs, 841 F.2d 1512, 1520 (10th Cir.
1988). Nonetheless, dismissal as a sanction is clearly within
the district court's discretion. See Chambers,
501 U.S. at 44 (“[O]utright dismissal of a lawsuit . .
. is a particularly severe sanction, yet is within the
case, Ford claims that since the initial motion to dismiss
for spoliation sanctions, Bear River's experts have been
deposed and their testimony has revealed new facts that alter
the spoliation analysis, warranting dismissal. Specifically,
Ford claims it has obtained new and significant information
regarding: (1) Plaintiff's failure to follow National
Fire Protection Association (NFPA) codes and standards
resulting in a failure to properly document and preserve
evidence at the scene, (2) the lack of reliability and
conclusiveness of the SEM testing, and (3) the significance
of the loss of the electrical housing. Having carefully
reviewed Ford's renewed motion, the written submissions
of the parties, and the arguments of counsel, the Court
The Spoliation of the Scene
Ford's initial motion and the Court's August 2014
Order, new evidence has been discovered regarding Mr.
Norris' failure to follow proper procedures with regard
to his investigation of the fire. National Fire Protection
Association (NFPA) 921 is a scientific-based investigation
standard which requires an investigator to identify and
evaluate all potential causes of a fire. See NFPA
921, § 19.2. Although Mr. Norris purported to follow
NFPA 921, discovery has revealed multiple times when Mr.
Norris failed to meet his obligations.
example, under NFPA 921, Mr. Norris had a duty to notify all
parties of his investigation. See NFPA 921, §
220.127.116.11. During his first inspection of the Schoepf's
garage, Mr. Norris determined the area of origin was in the
northwest corner. Because this “first inspection”
revealed and/or identified other interested parties,
consistent with his obligations under NFPA 921, Mr. Norris
“preserved the scene” and “didn't do
any destructive further examination at that time.”
(Dkt. No. 86-3, Norris Dep. at 73.) Mr. Norris knew that in
order to proceed, a “joint inspection” was
necessary and “potential parties needed to be put on
notice and given an opportunity” to inspect the scene.
(Norris Dep. at 73, 95.) Thereafter, Mr. Norris notified his
client, Bear River, but otherwise did nothing to notify Ford
or others of the second scene inspection. (Norris Dep. at
95-96.) When Ford did not appear for ...