Alaska Employment Law

In this case under the Contract Disputes Act, plaintiff asked the Court to preclude the government from calling 1) witnesses not produced at Rule 30(b)(6) depositions, and 2) witnesses concerning events associated with documents that the government is no longer able to find.

District Court Judge John Sedwick held, as to the non-produced Rule 30(b)(6) witnesses:

Under the circumstances presented, the court concludes that the appropriate resolution of this aspect of Samson’s motion is to hold that the United States may not call any person to testify as to the facts and circumstances involved in decisions relating to the selection of the transportation mode to be used for moving cargo to and from Adak during the period covered by the Contract except persons whose depositions have been taken (whether 30(b)(6) or otherwise), and not to exceed four additional witnesses whose depositions have not already been taken, on condition that each such additional witness shall (1) be a person named on the United States’ already filed final witness list, and (2) be made available for deposition on or before September 19, 2008.

As to the second issue, Sedwick first noted that “in this circuit a court may order sanctions against a party, even absent bad faith, for failure to preserve evidence if the party has notice of potential litigation.”  (Here, the notice was the plaintiff’s FOIA requests to some government offices.)  Sedwick denied the reqeust for sanctions, holding:

There is no assertion that the United States acted in bad faith, and the court declines to impose sanctions on other grounds. First, it has not been established that all of the documents Samson says should have been retained ever existed. Second, it has not been established that requests were sent to agencies which actually had whatever records did exist. Third, it has not been established that the documents sought were in the possession of any government agency at the time the requests were made. Fourth, the requests did not indicate the documents sought related to potential litigation. Finally, even were the court to overlook the concerns just recited, it would be extremely harsh to impose such a puissant sanction based on the record presented.

The day before, Sedwick had ruled on several expert witness issues.

Samson Tug and Barge Co., Inc. v. United States, 2008 WL 3285154 (D.Alaska Aug. 7, 2008)