Alsadi v. Intel Corp.
| Decision Date | 17 July 2020 |
| Docket Number | No. CV-16-03738-PHX-DGC,CV-16-03738-PHX-DGC |
| Parties | Ahmad Alsadi and Youssra Lahlou, husband and wife, Plaintiffs, v. Intel Corporation, a Delaware corporation, Defendant. |
| Court | U.S. District Court — District of Arizona |
The trial in this tort action was set for May 2020, but was postponed because of the COVID-19 pandemic. The Court plans to reset the trial at the earliest opportunity. The parties have filed 14 motions in limine ("MILs") and Plaintiffs have filed a motion for negative inference. Docs. 207-08, 231-43. The Court heard oral argument on July 17, 2020. This order resolves each motion.
Intel owns an industrial wastewater system ("IWS") housed in the CH-8 building of its technology development campus in Chandler, Arizona. Technicians at Jones Lange LaSalle ("JLL") operate the IWS. Plaintiff Ahmad Alsadi worked for JLL as a HVAC technician at Intel's Chandler campus.
On February 28, 2016, an overdose of the chemical Thio-Red caused the IWS to emit hydrogen sulfide ("H2S") and possibly other toxic gases. CH-8 and the nearby CN-3 building, where Alsadi was working at the time, were evacuated. Alsadi and other JLL employees were assembled near CH-8. Alsadi began experiencing a tingly throat, cough, headache, and watery eyes. He was evaluated by a nurse and then taken to an urgent care facility for treatment.
Plaintiffs filed suit against Intel in September 2016. Doc. 1-2 at 5-8. The second amended complaint asserts negligence and loss of consortium claims. Doc. 20. Plaintiffs allege that as a result of Alsadi's exposure to toxic gases, he has experienced coughing, pulmonary and respiratory distress, and other injuries requiring medical care. Id. ¶ 21. Alsadi seeks damages for his alleged injuries and future medical care. Id. ¶ 26. He claims that he is permanently disabled. See Docs. 161 at 5, 195 at 3.
The Court denied Intel's motion for summary judgment on Alsadi's negligence claim. Doc. 204 at 26-30. The Court granted Intel's motions to preclude Plaintiffs' experts from offering causation opinions in Plaintiffs' case-in-chief (see id. at 2-19, 22-25), but denied summary judgment on the issue of causation because a jury reasonably could find, without the benefit of expert medical testimony, that Alsadi was exposed to H2S and the exposure caused an immediate toxic inhalation injury (see id. at 30-33). Following supplemental briefing, the Court granted summary judgment in Intel's favor on whether Alsadi's exposure to H2S caused reactive airways dysfunction syndrome ("RADS"), but denied summary judgment on the extent and duration of his symptoms. Doc. 216 at 2-7.
John MacDonald, Intel's emergency response team ("ERT") leader, responded to the chemical release at CH-8. Doc. 197-1 ¶ 39. MacDonald and Michael Torbert, a JLL employee, obtained an H2S reading of 11.7 parts per million ("ppm') inside CH-8 using a digital Altair 5X Gas Detector ("Altair detector"). Id. ¶ 43. The 11.7 ppm measurement is reflected as the "highest level detected" in an ERT report MacDonald prepared after the incident. Doc. 196-10 at 5. The ERT report is the only record of H2S measurements taken during the incident. Doc. 207 at 2, 7. Intel contends that an H2S level of 11.7 ppm couldnot have caused the permanent symptoms claimed by Alsadi, and that there is no evidence that Alsadi was exposed to even that level. Doc. 210 at 4.
Plaintiffs contend that to accurately assess the highest level of Alsadi's actual exposure, "adequate data would be required - measurements of ambient gas levels over numerous points in time from the locations where [Alsadi] was working throughout the day." Doc. 207 at 3. Plaintiffs assert that no such data exist because Intel failed to preserve data recorded by the Altair detector and did not collect other data of H2S levels. Id. Plaintiffs request that a negative inference be applied in light of Intel's alleged failure to collect and preserve data showing actual levels of hazardous emissions, and that an appropriate jury instruction be given at trial. Id. at 2-3; Doc. 207-1 at 1. Since the briefing of this motion, the parties have agreed to a bench trial. Doc. 276 at 2. The issue presented by the motion, therefore, is whether the Court should apply a negative inference when deciding this case.1
Intel argues that it had no duty to preserve evidence before it received notice that litigation was probable, that it had no duty to create evidence of hazardous emission levels, and that Plaintiffs ignore Federal Rule of Civil Procedure 37(e), which governs negative inference sanctions for the loss of electronically stored information ("ESI"). Doc. 210 at 2-3.
"It is well established that [a] 'duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation.'" Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011) (quoting Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 800 (N.D. Tex. 2011)). The failure to preserve relevant evidence, "once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences." Id. (quoting Thompson v. U.S. Dep't of Hous. & UrbanDev., 219 F.R.D. 93, 100 (D. Md. 2003)). "Spoliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another's use in litigation." Id. (citing Ashton, 772 F. Supp. 2d at 799-800); see Pettit v. Smith, 45 F. Supp. 3d 1099, 1104 (D. Ariz. 2014) (same).
Rule 37(b)(2) permits a court to sanction a party for disobeying a discovery order, and Rule 37(e) permits a court to sanction a party for losing or destroying ESI it had a duty to preserve. Plaintiffs do not contend that Intel violated a discovery order or that a negative inference otherwise is warranted under Rule 37(b)(2). Nor do Plaintiffs address Rule 37(e) in their motion. See Doc. 207. Plaintiffs instead seek a negative inference based on the Court's inherent authority to make appropriate rulings in response to the spoliation of non-ESI evidence. Id. at 3 (citing Glover v. Bic Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)).
The evidence Intel allegedly failed to preserve - electronic data recorded by the Altair detector (see id. at 2) - clearly constitutes ESI. Plaintiffs note in their motion that the Altair detector "has the ability to store data readings." Doc. 207 at 5. They noted in their reply brief that Altair detectors "have the capability to log their data, and this data can be uploaded to a computer." Doc. 215-1 at 8.2
Plaintiffs argued during the July 17 hearing that the data recorded on the Altair detector is not ESI within the meaning of Rule 37(e) because it was not stored on a computer system, but this is too narrow a reading of the phrase "electronically stored information." That phrase was first added to the Federal Rules of Civil Procedure in 2006 and is used in a number of rules. See, e.g., Fed. R. Civ. P. 16, 26, 34, 37. Rule 34 states that ESI includes "writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form." Fed. R. Civ. P. 34(a)(1)(A) (emphasis added). The 2006advisory committee note to Rule 34 explains that the meaning of ESI "is expansive and includes any type of information that is stored electronically." Fed. R. Civ. P. 34(a)(1) advisory committee note to 2006 amendment. Although Rule 37(e) was not amended to its current form until 2015, the advisory committee note for the 2015 amendment makes clear that it was intended to apply to ESI as defined broadly in 2006: "The new rule applies only to electronically stored information, also the focus of the 2006 rule." Fed. R. Civ. P. 37(e) advisory committee note to 2015 amendment. That the 2015 rule was not limited to data stored on a computer system - as Plaintiffs argued at the hearing - is also made clear by the advisory committee's observation that the amendment to Rule 37(e) was warranted by "the ever-increasing volume of electronically stored information and the multitude of devices that generate such information[.]" Id. (emphasis added). The Altair detector is one of those devices, and data recorded electronically on it clearly constitute ESI within the meaning of Rule 37(e).
Plaintiffs' citation to Glover and their reliance on the Court's inherent authority to sanction a party for spoliating evidence is not persuasive. "The 2015 amendment to Rule 37(e) now 'forecloses reliance on inherent authority' to determine whether and what sanctions are appropriate for a party's loss of discoverable ESI." Small v. Univ. Med. Ctr., No. 2:13-CV-0298-APG-PAL, 2018 WL 3795238, at *66 (D. Nev. Aug. 9, 2018) (); see Sherwood v. BNSF Ry. Co., No. 2:16-CV-00008-BLW, 2019 WL 1413747, at *1 (D. Idaho Mar. 28, 2019) ().
The drafters of Rule 37(e) specifically "intended to preempt use of other sources of sanctions - such state law or the long-established 'inherent power' doctrine - and require findings consistent with Rule 37(e) as the only path to remedying the loss of [ESI]." Stevens v. Brigham Young University-Idaho, No. 4:16-CV-530-BLW, 2019 WL 6499098, at *3 (D. Idaho Dec. 3, 2019). They did so because they were seeking to bring uniformity to an area of the law that had been badly splintered by various courts' reliance on inherent authority. See Rule 37(e) advisory committee note to 2015 amendment ( ...
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