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Aronstein v. Thompson Creek Metals Company Inc.

United States District Court, D. Colorado

April 27, 2017

DAVID ARONSTEIN, et al., Plaintiffs,
v.
THOMPSON CREEK METALS COMPANY INC., et al., Defendants.

          ORDER

          RAYMOND P. MOORE United States District Judge.

         Pending before the Court are plaintiffs', David Aronstein and Lesley Stroll (collectively, “plaintiffs”), motions for discovery sanctions (“the motion for sanctions”) and leave to file a third amended complaint (“the motion to amend”).[1] (ECF Nos. 191, 230.) Defendants Thompson Creek Metals Company Inc. (“Thompson Creek”), Kevin Loughrey (“Loughrey”), Pamela Saxton (“Saxton”), and Pamela Solly (“Solly”, and, collectively, “defendants”) have responded to both motions (ECF Nos. 198, 233), and plaintiffs have filed replies (ECF Nos. 203, 237).

         For the reasons discussed infra, the motion for sanctions and motion to amend are DENIED.

         1. Plaintiffs' Allegations

         The allegations underlying the two instant motions are the same, thus, the Court will summarize from both pleadings. The basis for the two motions is plaintiffs' belief that defendants have failed to preserve certain electronically stored information, in violation of Fed.R.Civ.P. 37(e) (“Rule 37(e)”) and state tort law. The motion for sanctions is premised upon the alleged violation of Rule 37, while the motion to amend seeks to add claims premised upon Connecticut tort law. Plaintiffs' allegations run as follows.

         The current operative complaint, the Second Amended Complaint (“the SAC”), alleges that, as of February 25, 2011, defendants knew that the cost of the “Mt. Milligan Project” was materially higher than the amount ($915 million) disclosed to plaintiffs. (ECF No. 191 at 2.) A former employee of Thompson Creek, Terry Owen (“Owen”), at a board meeting in July 2010, stated that he expected the cost of the Mt. Milligan Project to increase $250 million. (Id. at 4.) Owen was the Director of Projects at Thompson Creek, and the technical head of bringing the Mt. Milligan Project into production. (Id. at 3.)

         The agenda for a November 3, 2010 board meeting stated that Owen would give a review of the Mt. Milligan Project and that a “presentation” would be provided. (Id. at 4.) The “presentation” was not provided in discovery, and defendants' attorney has represented that Owen could not recall if a physical document was created for the November meeting. Under examination during a deposition, though, Owen stated “in no uncertain terms” that there had been a presentation. (Id.) Owen also testified that, at the time of the November 2010 board meeting, his expectation for a $250 million cost increase at the Mt. Milligan Project remained unchanged. (Id. at 5.) The materials for a board meeting on February 23, 2011, showed that the expected cost of the Mt. Milligan Project would “probably fall in the range of $1.25 Billion and $1.425 Billion.” (Id. at 6.) On a conference call two days later, defendant Loughrey stated that Thompson Creek still did not know whether or not the cost of the Mt. Milligan Project would increase. (Id.)

         Plaintiffs have also alleged that defendants' attorney has represented that virtually no documents, created or modified during the period October 1, 2010 to May 15, 2011, existed on Owen's computer drive. (Id. at 2; ECF No. 230 at 2.) The Senior Manager for IT at Thompson Creek, Lance Moss (“Moss”), stated that, when Owen left Thompson Creek, a copy of all local files stored on his laptop computer were transferred to a folder on the company's shared drive, the folder on the shared drive had not been altered or deleted, and it contained approximately 36 gigabytes of non-email files. (ECF No. 230 at 2-3.)

         2. Discussion

         Plaintiffs' motions rely upon that theory that, because of Owen's former position at Thompson Creek, there is “no doubt” that his computer and shared drive “at one point contained a vast amount of the detailed engineering and design documents, including all the foundational documents that would have been the basis for his Board of Directors presentations of July 2010, November 2010 and February 2011.” (ECF No. 191 at 3; see also ECF No. 230 at 3.) According to plaintiffs, these documents are “missing, ” and, if found, “would certainly shed light on what the company knew and when they knew it with regards to the allegations of the SAC.” (ECF No. 230 at 4; see also ECF No. 191 at 5.) Plaintiffs ask this Court to find, as a result of defendants failing to preserve the missing documents, that defendants knew, as of February 23, 2011, the expected cost of the Mt. Milligan Project was between $1.25 and $1.425 billion. (ECF No. 191 at 8.)

         The Court rejects plaintiffs' request because their assertions are premised upon unfounded speculation and flawed assumptions. First among those flaws is plaintiffs' failure to explain how the Court is meant to reach the requested finding based upon certain allegedly missing documents. There is no evidence whatsoever that any of the missing documents, assuming for present purposes that they are missing, contained any information resembling the requested factual finding. Plaintiff does not even allege that the missing documents contain this information. Instead, plaintiff simply wants this Court to assume, based upon one document from the February 23, 2011 board meeting (see ECF No. 191 at 6), that an unknown number of other documents existed, showing that the expected cost of the Mt. Milligan Project was expected to increase to at least $1.25 billion, and were at some point destroyed. The Court is not willing to make either unfounded assumption.

         Second, although plaintiffs are very specific as to precisely what they wish this Court to find for purposes of sanctioning defendants, plaintiffs are notably vague as to what the missing documents contained. The motion to amend unhelpfully states that the documents would “certainly shed additional light on what the company knew”. (ECF No. 230 at 4.) How this leads to an assumption that defendants knew the cost of the Mt. Milligan Project would increase to at least $1.25 billion is unclear and unexplained. The motion for sanctions is more specific, at least with respect to one document, stating that the November 2010 board presentation would cover in some detail why Owen thought that the expected cost increase for the Mt. Milligan Project remained unchanged as of November 3, 2010. (ECF No. 191 at 5.) If that is the case, plaintiffs should have simply asked Owen that question (i.e., asked him about the reasons for why his cost increase expectation remained unchanged) at his deposition. In any event, other than the November 2010 presentation, there is no explanation of what any other missing document contained, even in a vague sense.

         As such, the Court does not find that defendants failed to preserve electronically stored information when the Court cannot even get a grasp on precisely what information is alleged to have gone missing.

         Third, plaintiffs have not shown that defendants failed to preserve any documents. Put another way, there is no evidence that any documents are missing. To support their assertion that documents are missing, plaintiffs rely on Owen's purported deposition testimony that he did create a presentation for the November 2010 board meeting. (ECF No. 191 at 4-5.) As an initial matter, this testimony relates only to the purported November 2010 board presentation. As such, it does not support the suggestion that documents other than that presentation are missing. With respect to the presentation itself, plaintiff relies upon Owen's deposition testimony that he “probably” would have had “slides” for the November 2010 board meeting. (ECF No. 203 at 5.) Contrary to plaintiffs' belief, this is not evidence that Owen created a presentation for the ...


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