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Raymond May v. F/V Lorena Marie

May 16, 2011

RAYMOND MAY, PLAINTIFF,
v.
F/V LORENA MARIE, OFFICIAL NO. 939683, HER TACKLE, APPAREL, BOATS, COMPEL PRODUCTION OF APPURTENANCES, IN REM; JAMES PHOTOS AND FILM OR FOR SKONBERG AND JANE DOE APPLICATION OF SPOILATION SKONBERG, HUSBAND AND WIFE, IN OF EVIDENCE RULE [41]; PERSONAM, QUASH DEPOSITIONS OF DARREN



The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge

ORDER REGARDING MOTION TO MULLER AND DEVIN [sic] SKONBERG AND FOR SANCTIONS [44]; and PLAINTIFF'S MOTION TO REOPEN DISCOVERY ON A LIMITED

BASIS [48]

Dockets 41, 44 & 48

Plaintiff filed a Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 41. Defendants filed their Opposition at Docket 50 and Plaintiffs Reply was filed at Docket 52. Plaintiff asserts that there exist a DVD, video film and photographs showing the collision between the F/V LORENA MARIE and the F/V NORTHWESTERN and the events surrounding the collision that have yet to be produced by the Defendants. He seeks the production of these items. In the alternative, he asks the court to apply the Spoliation of Evidence, or Establishment, Rule.

In response to Plaintiff's Motion at Docket 41 and to Plaintiff's request to depose Devon Skonberg and Daren Muller, Defendants filed a motion to quash the depositions and to sanction the Plaintiff for costs associated with the filing of the motion. Docket 44. Plaintiff filed a Response in Opposition at Docket 53. Defendants cite the close of discovery in July 2010 and Plaintiff's failure to provide reasonable notice in compliance with Federal Rule of Civil Procedure 30(b) in support of their Motion.

Finally, in response to Defendants' Motion at Docket 44, Plaintiff filed a Motion to Re-Open Discovery on a Limited Basis to allow for further investigation of the newly discovered videos and images relating to Daren Muller and Devon Skonberg at Docket 48. Defendants filed their Response in Opposition at Docket 55 and Plaintiff filed his Reply at Docket 56.

The facts surrounding the motions and the items requested are somewhat confusing. As such, a brief recitation is appropriate.

I. Facts

On August 25, 2007, Defendant Skonberg's commercial fishing vessel, the F/V LORENA MARIE, and Plaintiff's commercial fishing vessel, the F/V NORTHWESTERN, collided during the "flare" opening for salmon in Kitoi Bay, Alaska. Several witnesses were taking still and video images from a runabout during the time the vessels collided. Defendants' grandson, Devon, Defendants' friend, Darren Muller, and Defendants' friend Donald Kewan, Jr., all took images (video and still) of the opener. Many of those images have been discovered.

Plaintiff claims there are still two videos which have not been discovered. One video was shot by Darren Muller. The other was shot by Donald Kewan, Jr., given to Devon Skonberg and transferred to DVD by Devon Skonberg. Mr. Kewan asserts he no longer has control of his video and the Plaintiff seeks discovery of the original Kewan video, and all DVDs made therefrom.*fn1

The Plaintiff, through viewing other images of the events of the day, also learned that some still and video images were shot by Defendants' grandson, Devon Skonberg. After requesting the images from Devon Skonberg over a period of months, the Plaintiffs were given some of the images on November 12, 2010. Plaintiff alleges that the images which were given to the Plaintiff by the Defendant were incomplete.*fn2 The images produced appear to capture events before and after the collision, but not the collision itself. In the interim, Devon Skonberg claims to have recently lost the computer hard drive which contained the images. Devon stated in a filed affidavit, however, that all relevant images and video clips were already turned over to the parties.*fn3

The Plaintiff argues that the Defendants should have located and turned over Mr. Muller and Devon Skonberg's images months ago. Based on Muller and Devon Skonberg's locations during the collision (as seen in other videos and images already produced), Plaintiff believes these images not yet discovered likely will show who was at fault for the collision, thus bearing significantly on the outcome of the case. Defendant argues that there are no further items to be discovered.

Additionally, Plaintiff notes that the Defendants are acquaintances with Mr. Muller, serving on a board with the Defendant James Skonberg. And, Devon Skonberg is Defendants grandson and resides with the Defendants. Therefore, Plaintiff argues that it is the ...


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