United States District Court, D. Colorado
RAYMOND P. MOORE United States District Judge.
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”). (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.
reasons discussed infra, the motion for sanctions
and motion to amend are DENIED.
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.
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.)
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.)
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.)
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
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.
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.
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.
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 ...