U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION IV, ATLANTA, GEORGIA, & EPA INSPECTOR GENERAL,
Respondents
ORDER DENYING COMPLAINANT'S MOTION FOR DEFAULT JUDGMENT FOR DESTRUCTION AND CONCEALMENT OF EVIDENCE
On February 7, 2002, Complainant's counsel faxed a Motion for Default Judgment for Destruction and Concealment of Evidence alleging that Respondent EPA destroyed hundreds of E-mail back-up tapes covered by document requests pending before this Court. Complainant included attached exhibits reflecting that Rick Shekell deleted 250 IBM tapes from the library in a memorandum dated January 29, 2002. (CX 52A). Complainant's counsel alleges that Respondent's evidence destruction was intentional in light of Complainant's request that the E-mail back-up tapes be searched and the concerns of the Court and Congress regarding back-up E-mail tapes. Thus, Complainant's counsel would have this Court order default judgment on a spoilation of evidence theory and add Rick Shekell as a trial witness.
Respondent EPA filed a Response on February 14, 2002, arguing that Complainant's motion was time barred as January 15, 2002, was the last day for discovery matters and objected to adding Rick Shekell as a trial witness as January 17, 2002, was the deadline for filing pre-hearing submissions. Respondent also objected to Complaint's Motions alleging that there was insufficient evidence presented by Complainant to substantiate a default judgment or any other type of ruling because Complainant's Motion was vague as to time, date, and the content of what files were deleted, if any.
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Discovery in this matter was ended on January 15, 2002. Prior to that time Respondent EPA asserted that they had searched their E-mail tapes pursuant to Complainant's discovery request and had found nothing. Complainant never hired her own expert to inspect the tapes. Respondent EPA's memorandum reflecting destruction of E-mail tapes was dated January 29, 2002, well after discovery had ended. Furthermore, Complainant has not demonstrated that the destroyed E-mail tapes were related to the pending litigation as Complainant presented no evidence on the contents of the destroyed tapes. Accordingly, Complainant's Motion for Default Judgment based on spoilation of evidence is DENIED.
In light of the Court's Amended Pre-Hearing Order, dated February 6, 2002, and Complainant's request to add Rick Shekell as a trial witness, faxed to the Court on February 7, 2002, Complainant has ample time to add Mr. Shekell as a trial witness without a court order. The fact that the Court is denying Complainant's Motion for Default Judgment does not preclude Complainant from calling Rick Shekell at trial providing Complainant complies with the Amended Pre-Hearing Order.
