The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
ORDER REGARDING MOTION TO COMPEL PRODUCTION OF PHOTOS AND FILM OR FOR APPLICATION OF SPOILATION OF EVIDENCE RULE
The Court previously addressed this Motion in part at Docket 57. The Motion was held in abeyance pending further discovery. That discovery has been completed and the Motion is now ripe for consideration. The Court has thoroughly reviewed the pleadings and authority cited by the parties.
Plaintiff filed the Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 41. Defendant filed his Opposition at Docket 50 and Plaintiffs Reply was filed at Docket 52. As noted in the Court's Order at Docket 57, Plaintiff asserted that there existed 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 had not yet been produced by the Defendant. He sought the production of those items. In the alternative, he asked 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 Darren Muller, Defendant filed a motion to quash the depositions and to sanction the Plaintiff for costs associated with the filing of the motion at Docket 44. Plaintiff filed a Response in Opposition at Docket 53.
In response to Defendant's 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 Darren Muller and Devon Skonberg at Docket 48. Defendant filed his Response in Opposition at Docket 55 and Plaintiff filed his Reply at Docket 56. At Docket 57, the Court re-opened discovery so that the Plaintiff could depose Darren Muller and Devon Skonberg and ordered that any images in the possession of Devon Skonberg be made available to the Plaintiff.*fn1
Also in the Order, the Court denied Defendant's Motion for Sanctions but noted it previously granted Defendant's request to quash certain depositions due to the short notice given by the Plaintiff.
Following the depositions and further discovery investigations, Plaintiff filed a Supplemental Declaration of Steven V. Gibbons in Support of Plaintiff's Motion for Application of Establishment Rule and for Sanctions at Docket 58. Defendant filed a Supplemental Reply Relating to Plaintiff's Second Motion to Compel at Docket 61. With leave from the Court, Plaintiff filed a Reply to Defendants' "Supplemental Reply" on Motion to Compel Production of Photos and Film or for Application of Spoliation of Evidence Rule at Docket 65. The original motion and all subsequent filings relating to the Motion are ready for consideration.
The facts surrounding the motions and the items requested are lengthy. A brief recitation is appropriate. // //
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. Defendant's grandson, Devon Skonberg, Defendant's friend, Darren Muller, and Defendant's friend Donald J. Kewan, Jr. (A.K.A. D.J. Kewan, Jr.), all took images (video and still) of the opener. Many of those images have been discovered.*fn3
Earlier in the case, the Defendant discovered to the Plaintiff a video that Defendant believed was recorded by Darren Muller on the day of the opener. Upon closer inspection by the parties, it was discovered that Mr. Muller was in the footage thought to be shot by him. Following further investigation, the Plaintiff learned that the Defendants' grandson, Devon Skonberg possessed still and video images of the opener taken by himself and his friend D.J. Kewan, Jr. After requesting the images from Devon Skonberg over a period of months, the Plaintiff was given some of the images on November 12, 2010. Plaintiff alleges that the images which were given to him by the Defendant were incomplete.*fn4 The images produced appear to capture events before and after the collision, but not the collision itself. Devon Skonberg claims to have recently lost the computer hard drive which contained the images. But, during Devon Skonberg's deposition on June 6, 2011, and in a affidavit filed by the Defendant, Devon states that all still images were given to the Defendant's counsel (and in turn discovered to the Plaintiff).*fn5
The Plaintiff argues that the Defendant should have located and turned over Mr. Muller and Devon Skonberg's images months prior to the close of discovery. Based on Darren 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 would 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 and that they are not responsible for discovering these items; rather it is up to the Plaintiff, as Mr. Muller and Devon Skonberg are not parties to the case.
Additionally, Plaintiff notes that the Defendant is acquainted with Mr. Muller, who serves on a board with James Skonberg. And, Devon Skonberg is Defendant's grandson and resides with the Defendant. Therefore, Plaintiff argues that it is James Skonberg's responsibility to locate and produce the items in question.
Discovery closed in this matter on July 1, 2010. The Defendant produced some images to the Plaintiff around October or November of 2010. The Court issued an order at Docket 57 re-opening discovery through July 1, 2011, for the purpose of giving Plaintiff the opportunity to depose Darren Muller and Devon Skonberg. Steven Gibbons, attorney for the Plaintiff, deposed Devon Skonberg and D.J. Kewan, Jr. on June 7 and Darren Muller on June 9, 2009.*fn6
In Devon Skonberg's deposition, he testified that he has been a member of the Defendant's household since early childhood and was raised by his grandparents.*fn7 Devon stated that the videos made by Darren Muller and D.J. Kewan, Jr. were made at his request and that he has had since 2007 the three original video tapes of the opening taken by Mr. Kewan.*fn8
Devon confirmed that the missing photos and video clips he took were in the Skonberg's household from August 2007 until the hard-drive was lost in January of 2011, except when the items were in defense counsel's possession, the possession of James Skonberg, Jr. and Devon's mother.*fn9 Devon stated that the photos and video clips were still in his possession in December 2010 when he met with the attorneys for the Defendant and had defense counsel or the Defendant asked for the items earlier he would have provided them. Devon stated he was not asked for the video clips or photos until the fall of 2010 (October or November) and then he gave them to James Skonberg, Jr. (Defendant's son) who was to deliver them to defense counsel.*fn10 Defendant James Skonberg states that he contacted his grandson and requested the photographs and video after he learned of the existence of the images.*fn11
D.J. Kewan, Jr., during his deposition, stated that he filmed the events of the opener on the Skonberg's video camera at Devon's request and that he returned the camera to Devon that same day.*fn12
Darren Muller was deposed again following the Court's Order at Docket 57 and stated that his video has not been found. He also stated that had he been asked for the video in 2008 or 2009, he likely would have been able to find it then. As to the content of his video, he stated he and Devon were filming in different areas of the boat.*fn13
Paraig McDermott, a fisherman on the Defendant's boat at the time of
the collision, stated in his deposition that the LORENA MARIE hit the
NORTHWESTERN at the port stern of the NORTHWESTERN.*fn14
Plaintiff uses this information, in part, to bolster his
assertion that the Court should infer that the missing images would
show Defendants were at fault for the collision.
On June 22, 2011, copies of the original videos taken by Donald J. Kewan, Jr. were produced to the Plaintiff, after the depositions and re-depositions of the persons listed above.*fn15
In summary, the parties made their initial disclosures and conducted relevant depositions. Over time, it was learned that there were far more images taken by Defendant's family and friends on the day of the collision then what was originally given to the Plaintiff in discovery. After many months, most of that information has now been shared with the Plaintiff. It is not disputed that this evidence was ...