Thornton v. Blitz USA, Inc.

Citations: 850 F. Supp. 2d 1374; 2011 U.S. Dist. LEXIS 32146; 2011 WL 7693023Docket: No. CV 509-003

Court: District Court, S.D. Georgia; March 24, 2011; Federal District Court

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Plaintiff Donald E. Thornton's Motion for Sanctions and to Strike the Answer of Defendant Blitz USA, Inc., and to Compel Discovery has been denied by Chief Judge Lisa Godbey Wood. Thornton alleges that Blitz manufactured a defective gas container and failed to produce relevant documents during discovery, claiming this necessitates sanctions. The legal standard for sanctions, as established in Flury v. Daimler Chrysler Corp., includes factors such as whether the defendant was prejudiced by the destruction of evidence, the ability to cure that prejudice, the materiality of the evidence, the conduct of the party, and potential abuse of expert testimony.

Thornton contends that Blitz's actions warrant sanctions based on four points: (1) failure to implement a litigation hold from 1993 to 2009, (2) the Fifth Amendment invocation by Blitz executives related to document destruction, (3) destruction of a flame arrester design file, and (4) failure to produce emails in response to discovery requests. Thornton references testimonies from Blitz employees demonstrating a lack of understanding of the term 'litigation hold' and claims that relevant documents were destroyed. However, Blitz employees assert they understood the need to maintain potentially relevant documents, and the mere unfamiliarity with 'litigation hold' does not prove document destruction. Additionally, the relevance of the destroyed accounting documents, which Thornton suggests could indicate collaboration on flame arrester design, remains unclear.

Blitz asserts that no accounting documents relevant to flame arresters existed, as it never seriously contemplated their installation in its gas cans. The Plaintiff claims that certain destroyed documents from Wayne Wire, which submitted a bid in 2006 for screens that could be used as flame arresters, were improperly destroyed. However, Larry Gatewood, a Blitz employee, clarified that the bid was solely for wire mesh screens for funnels and unrelated to flame arresters for gasoline containers. The Plaintiff has not demonstrated how any destroyed Wayne Wire documents relate to the case.

Testimony from Linda Kerby, an accounting clerk at Blitz, was cited as evidence of a lack of a document retention policy. Her ambiguous statement that she had not heard of such a policy does not prove it did not exist or that relevant documents were destroyed in bad faith. Kerby also indicated that the documents she oversaw destroying were merely old accounting files, such as accounts receivables and bank statements, and she had no reason to believe any legal or design documents were included. The boxes contained labels confirming the documents were old accounting records.

The Plaintiff also referenced five documents produced during discovery to support claims of improper destruction, but these documents do not indicate any misconduct. For instance, one document advised retaining files related to pending litigation and consulting with an attorney before disposal. Lastly, Will Bailey, a former employee, testified that a plant manager suggested minimizing email retention unless immediately necessary, acknowledging the risk of retaining documents for potential legal issues. Overall, the Plaintiff's arguments do not substantiate claims of discovery abuses.

Bailey's testimony raises concerns as it fails to substantiate claims that Blitz employees deleted relevant emails or documents in relation to the lawsuit. While Bailey suggested that employees were encouraged to delete emails to avoid court relevance, this contradicts several employee testimonies, including Calcagno's assertion that he never directed any document destruction. Bailey noted that some Blitz executives used shredders for document disposal during pending litigation, but he did not claim that any relevant documents were destroyed. Miriam George clarified that she disposed of personal employee health forms, unrelated to the lawsuit. The court finds the Plaintiff's allegations of document destruction unproven, leading to the conclusion that sanctions against Blitz for not implementing a litigation hold are unwarranted.

Regarding the invocation of the Fifth Amendment by executives Rocky Flick, Chrisco, Eric Elmburg, and Cy Elmburg, Flick and Chrisco retracted their privilege claims before the Plaintiff's sanctions motion. Blitz offered to facilitate further depositions of the Elmburgs while minimizing burdens on the opposing counsel. However, the Plaintiff did not clarify the specific relief sought related to the executives' initial privilege invocation, nor did they present a compelling argument that such invocation should prompt sanctions.

On the matter of the alleged destruction of the flame arrester design file, the Plaintiff claims a significant loss related to Blitz's purported 2004-2006 project. They cite testimonies from Mike Dunbar, David Price, and Clint Haynes to support this claim. Dunbar indicated that Blitz engaged his firm for a two-phase flame arrester project, but his contributions were limited to summarizing publicly available articles, which does not substantiate a multi-year project or the existence of a destroyed research file. Furthermore, former employee Price acknowledged destroying documents linked to flame arrester research after being informed that Blitz had ceased pursuing the design. Price's research was primarily based on internet findings, lacking depth to confirm a significant project.

Price claims his research involved merely printing old patents and a few articles about flame arresters found online, none of which pertained to their use in portable gasoline containers but rather discussed in-line flame arresters in natural gas pipelines. Price discarded these print-offs, but this action does not warrant sanctions, as the plaintiff has not shown these documents held particular significance. Price acknowledged conducting the research and described the content of the print-offs, making it unlikely that the plaintiff suffered prejudice from their disposal. There is no evidence of bad faith in Price's actions, as he might have reasonably believed there was no obligation to preserve such documents.

The plaintiff also alleges that Blitz destroyed a flame arrester design sketch and prototypes once in Forbis's possession. Blitz admits that Forbis sketched a concept during a meeting, which was dismissed by an engineer as ineffective. Although Blitz did not produce the sketch, this failure is not subject to sanctions due to the spontaneous nature of the drawing and the immediate rejection of its validity, suggesting no obligation to preserve it.

Regarding the alleged prototypes, the plaintiff references an affidavit from Martha Landers, a former employee, who noted conversations about the need for flame arresters and mentioned seeing mesh items on Forbis's desk. However, her claims lack clarity on how these items were identified as prototypes for gas cans, and they contradict substantial evidence from Blitz indicating that its flame arrester project involved minimal research without prototype development. Forbis himself does not recall any prototypes, asserting that any mesh items would have been for products other than gas cans. Given the conflicting evidence, the Court will not impose sanctions based solely on Landers's affidavit.

Plaintiff submitted an affidavit from Clint Haynes, a former Proctor and Gamble employee, indicating the types of documents typically found in a product design file relevant to the flame arrester design project. Plaintiff argues that Blitz should face sanctions for failing to produce these expected documents. However, Plaintiff erroneously assumes the existence of an actual flame arrester design project, as no evidence has been presented to substantiate this claim. Consequently, reliance on Haynes's affidavit is deemed unfounded, leading the Court to deny Plaintiff's request for sanctions related to the alleged gas can flame arrester file.

Additionally, Plaintiff asserts that Jody Wood from Blitz’s IT department testified about past practices of deleting emails due to server overloads without implementing a litigation hold. However, Plaintiff fails to provide evidence that relevant emails were deleted as a result of these practices. Blitz acknowledges it has not yet produced all relevant emails but assures that these will be included in upcoming supplemental productions. Given Blitz's intent to provide relevant emails, the Court finds that sanctions for the alleged failure to produce emails are unwarranted. Consequently, Plaintiff's Motion for Sanctions and to Strike Blitz’s Answer, as well as to Compel Discovery, is denied.