MEMORANDUM. Santa Fe Corporation, The Burlington Northern and Santa Fe Railway Company, and BNSF

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1 MEMORANDUM This matter arises out of a wrongful death action against Defendants Burlington Northern Santa Fe Corporation, The Burlington Northern and Santa Fe Railway Company, and BNSF Railway Company (collectively BNSF ) for its involvement in the September 26, 2003 Ferry Street Crossing accident which resulted in the death of four young adults. 1 After a six-week trial, a jury awarded Plaintiffs damages in the amount of $24,000, After finding BNSF 90% at fault, judgment in the amount of $21,600, was entered against BNSF. Entry of Judgment was stayed to allow the parties to file their post-trial motions. The motion presently before the Court originally was scheduled to be heard in November, 2008, but was cancelled when a mediated settlement appeared imminent. Unfortunately, settlement negotiations failed and counsel stipulated that post-trial costs and sanctions motions would be heard in April, Almost from the inception of this case, Plaintiffs have alleged that BNSF has engaged in the systematic abuse of the civil ligation process, including, inter alia, the loss, destruction, and/or alteration of critical evidence, misrepresentations to this Court and Plaintiffs, and the general obstruction of Plaintiffs ability to prosecute their case. Plaintiffs now request that this Court impose sanctions against BNSF for their pervasive misconduct in these proceedings. I. BNSF S MISCONDUCT Allegations of BNSF s misconduct in this case are both plentiful and well-documented. Plaintiffs contend that BNSF engaged in a systematic exploitation of the civil-justice system of a pervasiveness seldom seen outside of John Grisham novels. Although BNSF admits that evidence was certainly bungled, it attempts to casually explain away each instance of 1 Before trial, Plaintiff Frazier entered into a Pierrenger agreement with the other Plaintiffs and the case was consolidated for the remaining proceedings. 1

2 misconduct 2 as the product of inadvertence, coincidence, and/or honest mistake. During the April 21, 2009 sanctions hearing, BNSF s recently substituted counsel 3 even ventured to offer an entirely new theory that had never even been alluded to during discovery or at trial in yet another veiled attempt to explain away BNSF s misconduct. BNSF contends further that its misconduct opened the door for Plaintiffs, resulting in a multimillion dollar verdict in Plaintiffs favor and that BNSF was the only party harmed by its own misconduct. Essentially, BNSF has thrown its hands in the air and rhetorically asked: why do bad things happen to good companies? Looking past these polarizing perspectives, this Court finds that BNSF did, indeed, engage in so many instances of misconduct that, when viewed in their totality, there can be no question for this Court that considerable sanctions are in order. BNSF tried, in earnest, throughout its submissions and at oral argument to confine Plaintiffs sanctions allegations to spoliation. Spoliation is defined as the destruction of evidence or the failure to preserve property for another's use as evidence, and may constitute an obstruction of justice. See Federated Mut. Ins. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn.1990). Under that definition, it is obvious to this Court that BNSF s misconduct went well beyond spoliation and encompassed other abuses as well. This Court does not find, however, that BNSF s actions constitute one of the largest miscarriages of justice perpetrated in American history, as Plaintiffs would have this Court believe. Rather, this Court has examined BNSF s misconduct within the purview of sanctions- 2 Misconduct is defined as [a] dereliction of duty; unlawful or improper behavior. Black's Law Dictionary (8th ed. 2004) 3 BNSF s new counsel, who had absolutely no involvement in the six-week jury trial that ended in the $24,000, verdict, argued that Mr. Hildebrant, BNSF s corporate designee for the entire trial and one of BNSF s primary witnesses, was, in essence, a rogue employee whose actions, which included, inter alia, lying under oath, losing, destroying, and/or tampering with critical evidence in this case, were outside the scope of his employment. This rogue employee theory, which this Court soundly rejected at the hearing, on the record, is discussed at greater length in the bad faith section of this Memorandum. 2

3 related statutes, rules, and case law, along with the inherent authority of the court to impose sanctions and will tailor her findings accordingly. 1. Spoliation and Discovery Abuses Plaintiffs contend that BNSF destroyed, altered, misplaced, and/or mishandled evidence at nearly every phase of these proceedings. BNSF admits that it bungled evidence, engaged in sloppy evidentiary maintenance and preservation, and that there has been clear and convincing showing of negligence. (April 21, 2008 Tr., BNSF Attorney Thornton at 25) In the same breath, however, BNSF also attempts to explain away its mishandling of evidence by claiming that it legitimately destroyed and/or misplaced evidence. As previously noted, BNSF has now taken the position, at this ridiculously late stage in the proceedings, that nearly all of this alleged misconduct can be attributed to one rogue employee, Craig Hildebrant. This Court finds that BNSF committed substantial evidentiary and discovery abuses which, when considered together, warrant significant court-imposed sanctions. a. HXP and HCA Downloads As a large railway company, BNSF maintains HXP and HCA event recorders at its crossings. These event recorders monitor the speed of an approaching train and ensure that there is adequate warning time at the crossing grade. The recorders also monitor the performance of the gates and lights at the crossings. Both parties appear to agree that authentic and tamper-free data from these recorders would provide definitive proof that the gates were either working properly or malfunctioning at the time of the accident. Unfortunately, in this case, the data from these event recorders were not tamper free and can no longer be authenticated. 3

4 Evidentiary abuses with the handling of data from the event recorders occurred within minutes of the accident and continued through trial. 4 On the night of the accident, BNSF employee Craig Hildebrant violated BNSF policy by downloading the recorder data to his laptop without a reliable witness present in the bungalow which housed the HXP and HCA event recorders at the time of the data transfer. Mr. Hildebrant, according to other BNSF employees, made a write-protected disk of the recordings and printed two paper copies as well. The paper copies, however, were only partial downloads of the recorder data. Ultimately, without Plaintiffs knowledge, the word processing documents were uploaded onto Mr. Hildebrant s H drive. Mr. Hildebrant also admitted that he altered the format of the data and changed its headings and titles shortly before the Plaintiffs July 17, 2005 inspection. Other than its own hollow assurances, BNSF has offered no credible evidence to corroborate Mr. Hildebrant s testimony that he only adjusted the mnemonics on the HCA event recorder. Mr. Hildebrant testified that he provided the write-protected disk and the paper copies to Signal Supervisor Richard Kaiser on September 29, This write-protected disk is particularly important because its contents and download time could easily be authenticated. Mr. Kaiser testified that he provided the disk and the paper copies to either Lynn Ross or Robert Hemmings in BNSF s claims department. Both Ms. Ross and Mr. Hemmings denied, under oath, that they ever saw or received a copy of the disk and/or the paper downloads. Despite the severity of the accident, imminent litigation, and the critical importance of the recorder data, no chain of custody or any other documentation forms were ever kept for the disk or paper copies of the downloaded data. What remains undisputed is the fact that the disk was misplaced, hidden, 4 For purposes of the instant sanctions motion, the allegations regarding the post-trial misconduct of BNSF and/or its trial counsel are not now before this Court. 4

5 or destroyed within a week of the accident. 5 Mr. Hildebrant s laptop, which contained the original download, also was destroyed. Mr. Hildebrant returned to the accident site to re-download the recorder data on September 29, 2003 (the day he met with Mr. Kaiser), October 3, 2003 (one day before the FRA inspection), and October 22, It appears to this Court that, at the same time BNSF concealed its knowledge of facts related to Mr. Hildebrant s downloading activities, it continued to represent to Plaintiffs and this Court that no other downloads had taken place. The September 29, 2003 download is particularly relevant to this proceeding. Discovery of the September 29, 2003 download was made by happenstance. During a court-ordered data inspection on November 10, 2006, Plaintiffs witnessed Mr. Hildebrant accidentally open a file that was downloaded on September 29, This Court ordered the data inspection, at Plaintiffs request, to allow them an opportunity to compare the partial printout that had been provided to them by BNSF with a data file from July This was necessary because BNSF repeatedly had represented to Plaintiffs and this Court that no other electronic version of the recorder data existed that was relevant to the September 26, 2003 accident. Once again, this is because the write-protected disk and Mr. Hildebrant s computer had been destroyed. BNSF represented to Plaintiffs that, at that time, the September 29, 2003 download was not related to the September 26, 2003 accident and again reiterated that no electronic versions of the recorder data existed. 5 BNSF informed this Court on February 13, 2006, that it was not BNSF s policy to maintain a write-protected disk. This misrepresentation is included in the misrepresentation and false testimony section of this memorandum. 6 Mr. Hildebrant testified, under oath, that except for the one occasion shortly before the July 17, 2005 site inspection, he never re-downloaded the recorder data and did not return to the accident site during the week after the accident. This topic will be addressed in the misrepresentation and false testimony section of this memorandum. 5

6 Plaintiffs, who had grown increasingly suspicious of BNSF s position regarding the alleged unavailability of electronic versions of the recorder data, had little choice but to file yet another motion to compel. In that motion, Plaintiffs requested that they be allowed to search Mr. Hildebrant s H drive for the September 29, 2003 download and any other files relating to the September 26, 2003 accident. 7 Plaintiffs located the September 29, 2003 file which obviously contained data from the September 26, 2003 accident. Plaintiffs also located downloads dated October 3, 2003 and October 22, 2003, both of which contained recorder data related to the September 26, 2003 accident. There were also dozens of other data recorder files that were downloaded that were unrelated to the September 26, 2003 accident, including files created after January 2004, around the time Mr. Hildebrant claimed he last transferred data to the H drive, and August 1, 2007, the date of Mr. Hildebrant s retirement. On November 10, 2006, Plaintiffs counsel Sharon Van Dyck and expert consultant Larry Farnham attended the court-ordered data inspection at BNSF s Northtown Facility. During that inspection, Mr. Hildebrant misclicked a key and inadvertently opened a file identified with the subject Ferry Street and the date of September 29, Upon discovering this September 29, 2003 file, which, previously, Mr. Hildebrant and BNSF had denied even existed, Ms. Van Dyck and Mr. Farnham immediately were escorted out of the room. Some time later, Ms. Van Dyck and Mr. Farnham were allowed to return to the room where a file dated September 26, 2003 was open on Mr. Hildebrant s laptop computer. BNSF counsel represented to Ms. Van Dyck that the September 29, 2003 file that she had seen, before being escorted out of the room, was not related to this case. By accidentally opening the September 29, 2003 file, Mr. Hildebrant allowed Plaintiffs to discover, contrary to BNSF s previous representations, that there were indeed 7 Additional BNSF misconduct related to its handling of the recorder data and interference with access to that data is discussed in more detail in the misrepresentation and false testimony section of this Memorandum. 6

7 electronic versions of the HCA data on Mr. Hildebrant s H drive. This inadvertent discovery immediately called into question Mr. Hildebrant s previous assurances and representations that he had not re-downloaded the recorder data or returned to the Ferry Street Crossing bungalow on September 29, This is one of many instances in which BNSF s credibility was placed on the line. Shortly before Plaintiffs July 17, 2005 site inspection, during which Plaintiffs experts observed Mr. Hildebrant print out the recorder data which Plaintiffs experts used from that point forward, Mr. Hildebrant again made an unaccompanied visit to the bungalow which housed the event recorders. At trial, Mr. Hildebrant admitted that during that unaccompanied visit in July, 2005, he altered the format, title, and headings of the event recorder data. Plaintiffs, understandably, suspect that other changes may have been made to the data at that time, the night of the accident, and other times unknown. BNSF contends that there was never any attempt on its part to defraud or mislead Plaintiffs. BNSF continued to urge Plaintiffs and this Court to accept as true BNSF s representations that it had provided Plaintiffs with unaltered paper copies of the event recorder data showing the accident-related train movement on the evening of September 26, Simply stated, BNSF would now have this Court find that it did not tamper with or fabricate any of the recorder data, even though it now appears to all, including the jury, that BNSF either lost, altered, and/or destroyed the very evidence that it claims would prove definitively that the gates were functioning properly at the time of the accident. 8 Unfortunately, there is no first-generation or native format data that is now available to answer the question about what really happened on that fateful evening of September 26, Further, Mr. Hildebrant has admitted to lying under oath about his handling of the recorder data 8 At trial, Plaintiffs forensic computer analyst testified that the easiest way to manipulate computer, like the HCA and HXP download data, is to collect a number of downloaded data files to get the look needed and then and paste the data from those files. 7

8 in this case; making BNSF s assurances even more suspect. This Court finds that BNSF s handling of the HXP and HCA event recorder data is sanctionable misconduct. b. Other Evidentiary Abuses BNSF prevented Plaintiffs, through their repeated misrepresentations, the destruction and loss of evidence, and ignorance, from obtaining access to and/or receiving various track, signal, and work records. This Court finds that the following acts amount to evidentiary abuses perpetrated by BNSF: (1) the destruction of the disabled crossing forms; (2) the concealment of railway detector car evaluations until a time when BNSF determined that it would be to its advantage to disclose and use them; (3) the failure to admit and disclose BNSF s knowledge of previous signal problems at the Ferry Street Crossing; (4) the failure to disclose and produce PATS/PARS records until the month before trial; (5) the failure to maintain complete HXP history logs; (6) the destruction of signal desk communications; and (7) the destruction of signal system blueprints. These records and documents related to maintenance and work that was done on the track and equipment related to the Ferry Street Crossing; work that was performed the day before and on the day of the September 26, 2003 accident. Many of these lost, misplaced, destroyed, and selectively preserved items of evidence were critical to this case. Other evidence was disclosed to Plaintiffs very late in the proceedings, including during the month and days before trial and at trial. BNSF s failure to properly handle critical evidence and timely disclose requested and court-ordered documents and electronic evidence, not only compromised and undermined the record in these proceedings, but saddled Plaintiffs with the exorbitant time, labor, and cost expenditures that necessarily followed. Additionally, due to BNSF s delays and untimely disclosures, critical fact witnesses were deposed more than four years after the accident; leaving their memories compromised by the 8

9 passage of time. After finally unearthing some of these documents and learning of the destruction of others, it was revealed that a work gang had, in fact, worked on the approach track at the Ferry Street Crossing the day before the accident and that, shortly after the accident, the signal system had been revised. The shop drawings, which would have confirmed that reconfiguration, mysteriously disappeared and were never found. Evidence was either destroyed, lost, and/or produced so late in this case, that relevant witnesses could no longer recall their work on or events related to the Ferry Street Crossing around the time of the accident. BNSF has attempted to rationalize the loss or destruction of evidence in this case as routine recycling or destruction occurring in the ordinary course of business. BNSF offered testimony regarding its standard practice or recycling employees personal computers and the limited tenure for the storage and retention of certain records. This Court is not persuaded. Under no set of circumstances, is this Court willing to accept BNSF s contention that the loss or destruction of evidence after Plaintiffs sent BNSF their February 3, 2004 evidence preservation request, was the result of mere coincidence, inadvertence, or part of regular record retention policies. BNSF knew or should have known that litigation was imminent soon after learning of the accident. There is no getting around the fact that four young adults were killed in an accident involving a BNSF locomotive at a railroad crossing. Correspondingly, BNSF should have taken reasonable steps to preserve evidence related to the Ferry Street Crossing. This does not mean that potential defendants in every case should necessarily be required to completely preserve an accident scene. But in cases such as this, involving multiple fatalities, when there can be little doubt that litigation will follow, defendants clearly have a duty to preserve evidence that is reasonably related to the accident; especially if a defendant already has an established evidence handling and preservation protocol in place. In this case, there were 9

10 several instances in which BNSF violated its own evidence preservation policies. This includes, but is not limited to, BNSF s failure to keep a write-protected disk of the event recorder data and maintain current signal system blueprints. It is hard to imagine a defendant railroad legitimately contending that evidence including work records, recorder history logs, and communications records are irrelevant and should be destroyed or that witnesses with knowledge regarding work performed near or on the track involved in the accident are irrelevant. Thus, this Court finds that BNSF failed, altogether, in its attempts to adequately preserve or produce numerous pieces of critical evidence in this case. 2. Misrepresentations and False Testimony This Court has lost count of the total number of misrepresentations BNSF made to counsel, the parties, and this Court throughout the proceedings. This Court s findings regarding BNSF s misrepresentations and false testimony are discussed below. a. BNSF represented to both this Court and Plaintiffs, during the February 13, 2006 hearing on Plaintiffs motion to compel, that it was not BNSF s policy to create a write-protected disk of HXP and HCA data. It was later revealed that it was, indeed, BNSF s policy to maintain that recorder data on write-protected disks. b. PATS/PARS records are maintenance records containing information regarding the time and location of work performed by maintenance crews on the railway. BNSF, through several different employees, repeatedly represented to both this Court and Plaintiffs that PATS/PARS records were not relevant. BNSF counsel characterized Plaintiffs request for PATS/PARS records as ridiculous. On October 8, 2007, during Plaintiffs fifth motion to compel discovery, when it appeared that the undersigned was going to allow some discovery of the 10

11 PATS/PARS records, BNSF quickly shifted gears and offered that access to the PATS/PARS database should be limited to Track 1 because that was the only track arguably involved in this case. Not only was this misleading, but it was false. After further discovery, on the eve of trial, Plaintiffs confirmed that PATS/PARS records referring to Tracks 0, 2, and 9 also included track work and inspections performed within the Ferry Street Crossing approach circuit; making these records very relevant. Despite numerous attempts by Plaintiffs, it was not until December 19, 2007, that BNSF finally revealed that work had been performed on the tracks within the Ferry Street Crossing s approach circuit. BNSF did not disclose and produce these PATS/PARS records until less than two months before trial and only after being ordered by this Court to make those records available. Despite Plaintiffs requests for all PATS/PARS and work order records, BNSF did not produce a previously undisclosed work order dated September 25, 2003 (the day before the accident) until less than a month before trial was scheduled to begin. With that work order in hand, Plaintiffs attempted to depose BNSF employee Jay Arvidson. Because of BNSF s abuses leading to the late discovery of this evidence, Mr. Arvidson s deposition took place less than three weeks before trial. During his deposition, Mr. Arvidson revealed that he had been working on the track the day before the accident and at that an eight-foot section of rail had been replaced within the Ferry Street Crossing circuitry approach. Once again, it appears that BNSF either misled or misrepresented what was contained in the PATS/PARs records. BNSF s insistence on limiting discovery to Track 1 appears to have been a diversion or an artificial filter that 11

12 only further delayed and interfered with the discovery of relevant evidence, namely those records which included inspection and track work that was performed on the subject track during the day before and the day of the accident c. In his December 19, 2007 deposition, BNSF employee Steven Mendell testified that Tracks 1 and 2 were the only columns listed in the PATS/PARS database. During his March 31, 2008 deposition, less than two months before trial, Mr. Mendell openly admitted that BNSF also keeps PATS/PARS information in data files or columns for Tracks 0 and 9. Plaintiffs confirmed that Track 9 files included records showing that work was done near the Ferry Street Crossing on the day before the accident. d. BNSF employee Lynn Ross was the claims representative dispatched to the accident scene and the first to interview the engineer and conductor involved in the accident. Ms. Ross represented that BNSF had worked diligently and cooperated with law enforcement in the investigation of the September 26, 2003 Ferry Street Crossing accident. Ms. Ross testified that BNSF provided the Minnesota State Trooper Accident Investigation team with all relevant evidence when requested. Discovery revealed quite a different story. BNSF stalled and failed to provide law enforcement with access to the following: (1) the HXP and HCA downloads; (2) the event recorder data from the locomotive; (3) access to the locomotive; and (4) the measurements from the locomotive and the locomotive s snowplow while the state accident reconstruction team was conducting its investigation. State Trooper Scott Trautner, the lead investigator on the State Trooper Accident Reconstruction team testified about Ms. Ross 12

13 refusal to turn over BNSF s recorder data. He described one particularly tensionfilled encounter with Ms. Ross, during which he accused her of stonewalling the investigation by refusing to provide the above-referenced information. Sergeant Trautner believed that BNSF s conduct related to the handling of evidence from the accident scene investigation, including the event recorder data, warranted a criminal investigation. In the end, the state troopers concluded their investigation and submitted their final report without ever having had the benefit of viewing BNSF s recorder data, measuring the BNSF locomotive and snow plow involved in the accident and inspecting the subject locomotive. e. Mr. Hildebrant testified, under oath, during his May 9, 2007 deposition that he only downloaded the HXP and HCA data on two separate occasions: September 26, 2003 and July 17, Mr. Hildebrant specifically denied that he returned to the Ferry Street Crossing and/or downloaded the HXP and HCA data on September 29, Mr. Hildebrant also attested to these facts in his May 17, 2007 affidavit. It was only through Plaintiffs multiple motions to compel and requests for this Court s intervention that they were able to expose this critical and blatant misrepresentation by Mr. Hildebrant. It also warrants mention that BNSF selected Craig Hildebrant to sit at counsel table with BNSF s trial counsel as BNSF s corporate designee during the entire six-week trial. f. Through tenacious discovery efforts, that included multiple motion hearings and sheer perseverance, Plaintiffs exposed two significant misrepresentations on the part of BNSF regarding the September 29, 2003 HXP and HCA data download. First, immediately after Mr. Hildebrant accidentally opened the file containing the 13

14 previously undisclosed September 29, 2003 HXP and HCA data download during a court-ordered inspection, Plaintiffs counsel and expert consultant were escorted out of the examination room. After twenty minutes, Plaintiffs representatives were allowed to return and were advised by BNSF that the September 29, 2003 file was not related in any way to the September 26, 2003 accident. Second, not long thereafter, Mr. Hildebrant submitted an affidavit stating that the September 29, 2003 file was not related to the September 26, 2003 accident. In a subsequent deposition, however, Mr. Hildebrant admitted that the September 29, 2003 file was, indeed, related to the September 26, 2003 accident and that he was aware of that fact at the time of his first deposition and at the time he misclicked on the file during the November 10, 2006 court-ordered inspection at BNSF s Northtown Facility. Mr. Hildebrant could not explain why he had denied this, under oath, on at least two previous occasions. Mr. Hildebrant also admitted that he conducted additional recorder data downloads on October 3, 2003 and October 22, Mr. Hildebrant was unable to say whether there were any additional downloads on his H drive. 3. Witness Abuses and Obstructing Law Enforcement a. BNSF employee Randy During testified at trial that he felt that he was being pressured to give testimony favorable to BNSF. Mr. During, who had worked for the railroad most of his life and took great pride in his job, was clearly uncomfortable during his testimony. b. Due to the long lapse in time, numerous witnesses were unable to recall pertinent information concerning events surrounding the September 26, 2003 accident. If 14

15 BNSF had responsibly performed its discovery and evidence preservation duties, these witnesses could have been found much earlier in the litigation process and memories and recall most likely would not have been so severely compromised. c. Shortly after the September 29, 2003 misclick incident, Plaintiffs were scheduled to depose Aaron Ratledge, BNSF s corporate designee for locomotive event recorder data. BNSF specifically instructed Mr. Ratledge not to bring his laptop computer to his deposition. Mr. Ratledge testified that he had used his computer to view the data in preparation for his deposition and could not answer many of Plaintiffs questions without his computer. d. On several occasions, the Minnesota State Patrol requested that BNSF produce downloaded data from the HXP and HCA event recorders. BNSF never did. BNSF also refused to provide the Minnesota State Patrol with the locomotive event recorder data. BNSF never made the locomotive which was involved in the accident available for inspection and measurement despite the Minnesota State Patrol s request for such access. Finally, BNSF also failed to provide the Minnesota State Patrol with the measurements for the locomotive and the locomotive s snowplow. 4. Conclusion This Court is satisfied that the record, which has developed over a period of six years, overwhelmingly supports a finding that BNSF did, in fact, engage in conduct and decision making that compromised critical evidence, interfered with witnesses, impeded the investigation by law enforcement, and misled and/or misrepresented a number of facts to Plaintiffs and this Court. BNSF has attempted to explain away this misconduct in piecemeal fashion by attributing 15

16 much to inadvertence, coincidence, honest mistake, and/or legitimate business practices. This Court is simply not persuaded. Taken alone, some of BNSF s abuses might not be sanctionable, and indeed might have been understandable given the complexities of this case. But the breadth of BNSF s misconduct in this case is staggering; beginning within minutes of the accident, up to and through the trial. Plaintiffs have established that BNSF s misconduct did indeed the strain limits of the civil justice system and this Court is on firm ground to impose significant sanctions. II. SANCTIONS LAW The power of courts to impose sanctions in Minnesota is derived from two basic sources: (1) rules and statutes; and (2) the inherent power of the court. Often, these two sources are indistinct; meaning that in many instances in which courts rely on rules and statutes they also invoke the inherent power of the court as a legitimate basis for sanctioning misconduct. Obviously, there are cases where courts rely strictly on rules or statutes to sanction misconduct. Contrary to BNSF s assertions, however, there are also cases in which the inherent power of the court has been invoked, standing alone, to sanction parties. See Patton v. Newmar, Corp., 538 N.W.2d 116, (Minn. 1995) ( Patton II ). Determining whether to impose sanctions and if, indeed, there is a sufficient factual basis to support such a decision, are questions of fact for the Court and, as such, are subject to an abuse of discretion standard. Dillon v. Nissan Motor, Co., Ltd., 986 F.2d 263, 267 (8th Cir. 1993). This Court will briefly address Minnesota s rules and statutes relating to sanctions and follow with a comprehensive analysis of the court s inherent power to levy sanctions. 1. Rules and Statutes There is a panoply of sanctions-related rules and statutes that apply to litigants in Minnesota. Specifically, Minn. Stat and Minnesota Rules of Civil Procedure 11.03, 16

17 26.07, and grant courts the authority to sanction parties and/or counsel. These provisions, however, address distinct forms of misconduct, leaving the opportunity for some types of misconduct to go unsanctioned. Rule 11.03, for example, applies only to signed documents and pleadings. Rule applies only to unresponsive or incomplete discovery responses. Further, these rules typically require a twenty-one (21) day safe harbor period. The nature of the misconduct in this case, which included, inter alia, destruction, mishandling, and tampering with critical evidence, misrepresentations to this Court and opposing counsel, and sundry other problems with witnesses, does not fit neatly into the existing sanctions framework provided by the rules of procedure and relevant statutes. In many instances, Plaintiffs did not become aware of BNSF s discovery abuses in time for the rules and statutes to effectively apply to them and afford any meaningful remedy. In fact, abuses continued to be discovered in the days leading up to and through trial. Obviously, an application of these rules to conduct that was still being unearthed at the time of trial would have no effect in changing BNSF s conduct or curing any prejudice to Plaintiffs. Also, as noted above, the rules and statutes do not readily address all forms of misconduct. Accordingly, this Court turns to its inherent power to determine the appropriateness of sanctions for BNSF s misconduct. 2. Inherent Power of the Court The thrust of Plaintiffs sanction request relies on the inherent power of the court to sanction misconduct; claiming that the courts inherent power allows for open-ended sanctions. BNSF contends that the inherent power of the court is non-existent when it is unaccompanied by the power of a rule or statute (i.e., Minn. Stat or Minn. R. Civ. P ). This Court has given serious consideration to the parties divergent positions regarding the Court s inherent 17

18 power to impose sanctions for misconduct and is more persuaded by the position advanced by Plaintiffs. The inherent power of Minnesota s courts is considerable and exists to provide courts with the means to ensure the efficient, just, and fair disposition of matters heard in court. The Minnesota Supreme Court has stated that the courts inherent power exists to fulfill the practical necessity of ensuring the free and full exercise of the court s vital function-the disposition of individual cases to deliver remedies for wrongs and justice freely and without purchase; completely and without denial; promptly and without delay, conformable to the laws. Patton II, 538 N.W.2d at (quoting Clerk of Court s Compensation for Lyon County v. Lyon County Commissioners, 308 Minn. 172, 177, 241 N.W.2d 781, 784 (1976); County of Ramsey v. Stevens, 283 N.W.2d 918, 925 (Minn. 1979)). Thus, it is clear that Minnesota s courts have inherent power to control the vital functions of justice and integrity for those matters coming before them with the use of sanctions when warranted; a call that is up to the court to make. Sanctions are not appropriate, however, merely because a party does not prevail on the merits. Radloff v. First Am. Nat l Bank of St. Cloud, N.A., 470 N.W.2d 154 (Minn. Ct. App. 1991). There being no question that this Court has the inherent power to sanction misconduct, the undersigned will next consider the standards for determining appropriate sanctions. In Patton v. Newmar, both the Minnesota Court of Appeals and Supreme Court announced that trial courts could invoke their inherent power to impose sanctions for misconduct. 538 N.W.2d at 119; Patton v. Newmar, Corp., 520 N.W.2d 4, 7 (Minn. Ct. App. 1994) ( Patton I ) rev d on other grounds, 538 N.W.2d 116 (1995). The Patton II Court held that the courts inherent power gave trial courts discretion to not only sanction the intentional 18

19 spoliation of evidence, but negligent spoliation as well. Id. This inherent power may be invoked within the trial court s discretion. Id. Patton and its progeny rely heavily on cases discussing the inherent power of federal courts to impose sanctions. Minnesota courts often rely on federal standards when announcing standards under its rules of civil procedure. See Id. (announcing reliance on the standards for determining sanctions that were laid out in Dillon, 986 F.2d at 263 and Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992)). See also Gibson v. Coldwell Banker Burnett, 659 N.W.2d 782 (Minn. Ct. App. 2003) (holding that federal "[c]ases interpreting Fed.R.Civ.P. 11, though not binding on this court, provide valuable guidelines for understanding the purpose and application of Minn. R. Civ. P. 11."). As such, crafting the appropriate sanctions for BNSF s misconduct necessarily requires a review of those federal cases that are intertwined with Minnesota s sanctions laws. In Patton I, the Minnesota Court of Appeals developed the standard for determining sanctions under the courts inherent power. In doing so, the Patton I Court relied on principles well-established in federal cases in which the courts invoked their inherent powers. See Dillon, 986 F.2d at ; Capellupo v. FMC Corp., 126 F.R.D. 545, 550 (D. Minn. 1989). While the Patton I Court addressed the inherent power of the court to sanction in spoliation cases, it also discussed and elucidated a standard for imposing sanctions based on the courts inherent power for all misconduct. Patton I, 520 N.W.2d at 8. Specifically, the Patton I Court promulgated a six-factor test for determining the appropriateness and severity of possible sanctions. These factors include: (1) the degree of fault or willfulness of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; 19

20 (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future; (4) whether any evidence has been irreparably lost; (5) the policy favoring adjudication on the merits; and (6) whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney. Id. While the Patton II Court limited its discussion to sanctions for spoliation, it also relied on the same federal cases cited in Patton I and agreed that Minnesota courts do, indeed, possess the inherent power to sanction. Patton II, 538 N.W.2d at Moreover, the Patton II Court expressly stated that it was accepting and applying the federal standards upon which Patton I relied. Id. at 119. As such, the Patton I six-factor framework is instructive when considering whether to impose sanctions not only for spoliation, but for broader abuses as well. 9 This Court has applied the Patton I six-factor test to BNSF s misconduct that is the subject of this motion and crafted her sanctions, accordingly. a. Bad Faith 10 Bad faith, contrary to BNSF s contentions, is not a dispositive consideration for imposing sanctions in Minnesota. Patton II, 538 N.W.2d at (holding that the negligent destruction of evidence is sanctionable under the courts inherent powers). In addition to Patton II s holding that a finding of bad faith is not required to sanction for spoliation, Dillon (from which the 9 It should be noted that while Patton I was overturned and remanded to the district court, it was remanded on a separate issue and the six-factor test was left untouched. In fact, the Patton II Court overturned the portion of the Patton I decision that found that the district court s sanctions were too severe. The Patton II Court s decision to overturn that portion of the Patton I decision actually reaffirms the notion that district courts have a particularly advantageous viewpoint for determining the appropriateness and severity of sanctions when invoking their inherent power. 10 Bad faith, n. 1. Dishonesty of belief or purpose. A complete catalogue of types of bad faith is impossible, but the following types are among those which have been recognized in judicial decisions: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms, and interference with or failure to cooperate in the other party's performance. Restatement (Second) of Contracts 205 cmt. d (1979). Black s Law Dictionary (8th Ed. 2006). 20

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