United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION FOR SANCTIONS
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Plaintiffs' Motion for
Sanctions [Doc. 68], filed on November 19, 2018. Defendant
Standard Nutrition Company responded on December 3, 2018.
[Doc. 72]. Plaintiffs never replied. Plaintiffs filed their
First Supplemental Brief regarding the Motion for Sanctions
on February 13, 2019. [Doc. 89]. Defendant responded to the
First Supplemental Brief on December 21, 2019. [Doc. 90].
Plaintiffs then filed their Second Supplemental Brief, and an
Errata regarding their First Supplemental Brief, on March 13,
2019. [Docs. 92, 93]. Defendant responded to the Second
Supplemental Brief on March 14, 2019. [Doc. 94]. The Court
held oral argument on the Motion on March 18, 2019. [Doc. 95]
(Clerk's Minutes). The Court has considered the briefing,
oral argument, the relevant portions of the record, and the
relevant law. Being otherwise fully advised in the premises,
the Court will DENY Plaintiffs' Motion.
breed horses at their New Mexico ranch. [Doc. 1-1] at 2. They
purchased feed for their horses from Defendant Standard
Nutrition on or about December 8, 2016. Id. at 5.
Plaintiffs allege that some of their horses became ill and
died after eating the feed. Id. Plaintiffs claim
that the feed contained monensin, a substance toxic to
horses. Id. Plaintiffs assert various claims against
Defendant, including claims for products liability, breach of
contract, cruelty to animals, unfair trade practices,
misrepresentation, and fraud. Id. at 7-14. Defendant
has filed a counterclaim alleging breach of contract (failure
to pay for the feed) and malicious abuse of process. [Doc. 5]
served Requests for Production (“RFPs”) seeking,
inter alia, notes and records related to Plaintiffs'
feed; records of the manufacture, storage, and movement of
the feed; and records identifying five other feeds that may
have contaminated Plaintiffs' feed. [Doc. 44] at 4- 6.
Dissatisfied with Defendant's responses to the RFPs,
Plaintiffs filed a Motion to Compel. [Doc. 44]. At the oral
argument on the Motion to Compel, counsel stated that
Defendant had agreed to supplement some of its discovery
responses. [Doc. 52] at 1. The Court therefore
granted the Motion “insofar as Defendant has agreed to
supplement its production of documents” and denied the
remainder of the Motion as moot. [Doc. 52] (Clerk's
Minutes); [Doc. 53]. The Court ordered Defendant to
supplement its responses by August 24, 2018, and ordered
Plaintiffs to file objections, if any, to Defendant's
supplemental responses no later than September 7, 2018. [Doc.
53]. Defendant supplemented its responses on August 24, 2018.
[Doc. 72-4]. Plaintiffs did not object.
months later, on October 25, 2018, Plaintiffs deposed George
Madrazo, Defendant's current Operations Manager and
formerly the Co-Operations Manager with Kevin Floyd. [Doc.
68-2] at 1. According to Plaintiffs, Madrazo testified that
Defendant has-or should have- various records, test results,
feed samples, fines,  and other evidence that it had not
produced. [Doc. 68] at 4-5. At the deposition,
Plaintiffs' counsel orally requested production of
Defendant's monensin inventory and test results from
Elanco. [Doc. 68-2] at 15, 20. Plaintiffs'
counsel emailed defense counsel on October 30, 2018, asking
Defendant to “look into” the documents Madrazo
testified to. [Doc. 72-3] at 1-2. These documents include: a
photo of a conveyor, notes and records from Floyd, test
results from Elanco, a fax concerning Defendant's
investigation into Plaintiffs' horses' deaths,
Defendant's monensin inventory, and other samples and
test results of Plaintiffs' feed. Id.
October 30, 2018 email, Plaintiffs' counsel also asked
Defendant's counsel to look into the fines that resulted
from the manufacture of Plaintiffs' feed. According to
Madrazo, those fines should have been retained at the mill
until the next production cycle. Id. at 2;
see [Doc. 68-2] at 5.
filed the instant Motion for Sanctions on November 19, 2018.
[Doc. 68]. Defense counsel subsequently replied to
Plaintiffs' counsel's email on November 28, 2018,
stating that, though he would provide photos of the conveyor,
all other discovery requests involved evidence (1) that
Defendant had already disclosed, (2) that Defendant had
destroyed inadvertently or in the normal course of business,
or (3) that did not exist at the time of the incident. [Doc.
72-3] at 1. Defendant responded to the Motion on December 3,
2018. [Doc. 72].
Court held a status conference on February 1, 2019. [Doc. 86]
(Clerk's Minutes). The Court ordered Plaintiffs to file
supplemental briefing addressing the deposition testimony of
Floyd and Plaintiffs' expert, Dr. Ronald Box, as well as
any other additional discovery completed after Defendant
responded to the Motion for Sanctions on December 3, 2018.
Id.; Recording of Status Conference at 4:15-6:00
(February 1, 2019) (Liberty-Picacho Courtroom). The Court
ordered Plaintiffs to file their supplemental brief no later
than February 13, 2019, and Defendant to file its response no
later than February 21, 2019. [Doc. 88].
filed their First Supplemental Brief on February 13, 2019.
[Doc. 89]. Plaintiffs argue that, based on Floyd's
testimony, Defendant should have retained 1, 180 pounds of
fines for testing, and that its failure to do so constituted
spoliation of evidence. Id. at 5-10. Plaintiffs
contend that Dr. Hall, Defendant's expert, testified that
testing the fines would have produced relevant evidence.
Id. Defendant filed its Response to Plaintiffs'
First Supplemental Brief on February 21, 2019. [Doc. 90].
filed a Second Supplemental Brief on March 13, 2019. [Doc.
92]. They again argue that the deposition testimony of Dr.
Hall indicates that testing the fines would have produced
relevant evidence. [Doc. 92] at 4-10. They make no new
arguments in the Second Supplemental Brief; it largely
provides quotations from Dr. Hall to support the same
spoliation arguments made in the First Supplemental Brief.
See Id. Defendant responded to the Second
Supplemental Brief on March 14, 2019. [Doc. 94].
argue that Madrazo's and Floyd's testimony
establishes that Defendant has relevant evidence it has not
disclosed. [Doc. 68]; [Doc. 89]. They argue that Defendant
should be sanctioned under Federal Rule of Civil Procedure 37
for two reasons. First, they believe that Defendant's
failure to disclose this evidence violated the Court's
Order Granting in Part Plaintiffs' Motion to Compel [Doc.
53]. [Doc. 68] at 12-13. Second, they claim that
Defendant's failure to disclose this evidence amounted to
a failure to supplement under Rules 26(a) and 26(e).
Id. at 13- 14. The evidence that Defendant allegedly
failed to disclose includes:
• Floyd's notes and records regarding
• A fax concerning Defendant's formulation of and
investigation into ...