191 D Memo Oppose Motion for Sanctions

8/13/2019 191 D Memo Oppose Motion for Sanctions

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UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Ellen S. Ewald,

Plaintiff,

vs.

Royal Norwegian Embassy,

Defendant.

))

))))))))))

Civil No. 11-CV-02116 (SRN/SER)

DEFENDANTS MEMORANDUM

OF LAW IN OPPOSITION TO

PLAINTIFFS MOTION FOR

SANCTIONS

INTRODUCTION

Plaintiff Ellen Ewalds motion for sanctions is so meritless that it is deserving of

sanctions itself. Having engaged in discovery creating legal expense that dwarfs the

amount at issue, Plaintiff brings this motion regarding (1) supposedly highly relevant

information she ignored throughout discovery; (2) an issue that is already resolved; and

(3) documents she already has. As this Court aptly observed: The scale of discovery

and diligence of the parties in pursuing information in this case, when viewed in the light

of the nature of the dispute, is breathtaking. Ex. 1, M.J. Rau Order at 4-5 (Oct. 8, 2013)

(Doc. 129) (M.J. Rau Order).1 Plaintiffs motion is another example of misusing the

litigation system in an effort to make the Embassys defense so expensive and unpleasant

that the Embassy is denied its day in court.

1 All exhibits not attached to Plaintiffs memorandum are numbered and attached to

the Affidavit of Joel P. Schroeder (Schroeder Aff.), filed herewith and referred to asEx. For ease of reference, the Embassy will refer to the lettered exhibits attached toMs. Fischers affidavit as Pls Ex.

CASE 0:11-cv-02116-SRN-SER Document 191 Filed 01/23/14 Page 1 of 27


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Plaintiff alleges that the Embassy failed to preserve and spoliated: (1) a mobile

phone not provided by the Embassy but used by Gary Gandrud; (2) a laptop computer

that Plaintiff used at the beginning of her employment at the Honorary Consulate until it

crashed; and (3) documents received by Innovation Norway, a Stakeholder institution

not party to this lawsuit. Plaintiffs allegations of spoliation fail for multiple reasons.

Gandruds Mobile Phone

The Court ordered the collection and production of text messages and voicemessages on Embassy-provided mobile devices; Gandruds mobile phone was notEmbassy-issued.

Plaintiffs argument is based on a single reference within the 89,001 documentsproduced to a text message sent by Gandrud in an email dated February 23, 2011.

Although Plaintiff now claims prejudice because of her supposed inability todiscover potentially highly relevant facts, Plaintiff did not ask a single question indepositions regarding the email referring to a text message despite having theemail since December 2012.

Plaintiffs counsel did not raise the issue of collection of text and voice messagesuntil May 31, 2013, more than two years after she first threatened litigation andthe weekend before a private mediation, which itself was a month before thediscovery deadline.

Plaintiffs Initial Laptop

The Court has already rejected this claim. Plaintiff claims the Embassy should be sanctioned for not preserving information.

But, Plaintiff stated the following on February 2, 2010, in response to an inquiry

about how she and her new laptop were doing:

I got a new laptop (lost everything on the other one :-((Really dumb!).



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Innovation Norways Documents

Innovation Norway is not a party to this lawsuit. Plaintiff misconstruesAmbassador Strmmens August 1, 2013 letter when she states that AmbassadorStrmmen admitted Innovation Norway is a part of the Embassy; in fact, he stated

that the Steering Committee members were part of an internal working groupunder Norways Public Administration Act.

The responsibility for archiving documents relating to Plaintiff rested with heremployer, the Ministry of Foreign Affairs (MFA); not the Stakeholders. TheEmbassy made clear to Plaintiff what it would and would not produce.

The Embassy, a part of the MFA, produced hundreds of documents regarding theStakeholders Steering Committee, including multiple copies of the meetingminutes allegedly missing and 107 emails sent to or received by Svein Berg, the

Innovation Norway representative on the Committee.

Plaintiff never listed Innovation Norway, or any of its representatives, as a personwith knowledge on her twice-amended Initial Disclosures or interrogatoryanswers. There is good reason for thisInnovation Norways representative onthe Steering Committee had very little interaction with Plaintiff. This is confirmedby the fact that Plaintiff never sent an email only to Mr. Berg, or vice versa.

The Embassy respectfully requests that the Court deny Plaintiffs motion and award the

Embassy its full attorney fees and costs in opposing Plaintiffs meritless motion.

BACKGROUND

I. Plaintiff and Her Counsel Have Used Discovery and Discovery Motions as a

Weapon to Prevent the Embassy From Having Its Day in Court.

Defendants, as well as plaintiffs, are entitled to their day in court. But civil

defendants that exercise their right to prove that they did not violate the law are not

sentenced to boundless discovery and litigation costs far exceeding the amount at issue.

That is the reason the Federal Rules require that discovery be proportional. Fed. R. Civ.



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P. 1; Fed. R. Civ. P. 26(b)(2)(C).2 Pre-trial proceedings in this case have long ago

violated this foundational principle. Five months ago, the parties had spent

approximately $1,500,000 on this matter, and fees and costs have continued to grow.3 As

this Court correctly stated: If ever a case implicated the proportionality principles and

provisions of the Federal Rules governing discovery, this case does. Ex. 1, M.J. Rau

Order at 5. And, as Judge Louise Dovre Bjorkman, Chair of the Minnesota Supreme

Courts Civil Justice Reform Task Force, has implored: it simply makes no sense to

spend more money on discovery in a case than is in dispute between the parties! See Ex.

2, Louise Dovre Bjorkman & David F. Herr,Reducing Costs & Delay: Minnesota Courts

Revise Civil Case Handling, BENCH &BAR OF MINNESOTA(May/June 2013), available at

http://mnbenchbar.com/2013/06/reducing_cost_delay/.

The vast bulk of the Embassys expenses have been incurred in responding to

Plaintiffs discovery requests, including collecting and reviewing over 187,000 pages of

2 Accord Kademani v. Mayo Clinic, No. 09-219, 2012 WL 5845338, at * 2 (D.Minn. Nov. 19, 2012) (Rule 26(b)(2)(C)(ii) requires the Court to limit discovery when aparty has had ample opportunity to obtain the information it seeks[.]); Kay Beer Distrib.,Inc. v. Energy Brands, Inc., No. 07-C-1068, 2009 WL 1649592, at *4 (E.D. Wis. June 10,2009) (The mere possibility of locating some needle in the haystack of ESIdoes notwarrant the expense [defendant] would incur in reviewing it.); Mancia v. MayflowerTextile Servs. Co., 253 F.R.D. 354, 362-63 (D. Md. 2008) ([R]ules of procedure, ethicsand even statutes make clear that there are limits to how the adversary system mayoperate during discovery.); Sommerfield v. City of Chicago, 251 F.R.D. 353, 358 (N.D.

Ill. 2008) (The discovery rules are not a ticketto an unlimited never-endingexploration of every conceivable matter that captures an attorneys interest.).

3 These mounting costs include approximately $10,000 in consultant and/or lawyer

time incurred because Plaintiff does not remember the password to her Embassy-provided mobile phone. See Doc. No. 189, Letter from J. Schroeder to J. Nelson (Jan.17, 2014).

http://mnbenchbar.com/2013/06/reducing_cost_delay/http://mnbenchbar.com/2013/06/reducing_cost_delay/http://mnbenchbar.com/2013/06/reducing_cost_delay/


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documents written in English and Norwegian, producing 89,001 pages of responsive

documents, and defending ten depositions in four countries.

II. The Context for Plaintiffs Claims.

The Court is familiar with the facts and claims. We present the following

abbreviated discussion to provide context for the issues presented by Plaintiffs motion.

A. The Education Position and the Business PositionIn 2008 the Embassy created two officer positions at its Honorary Consulate in

Minneapolis. These positions were unique and did notand do notexist anywhere else

within Norways MFA. One officer position focused on higher education and research

(the Education Position, held by Plaintiff), and the other focused on innovation,

entrepreneurship, promotion of business, and commercialization (the Business

Position, held by Anders Davidson).

B. The Role of the Stakeholders and Innovation Norways Very Limited Rolewith the Education Position

The persons holding the Education Position and the Business Position, Plaintiff

and Davidson, were employed by the MFA. Six Norwegian institutions (the

Stakeholders) committed to provide 1.5 million Norwegian Kroner to help cover the

cost of the two positions for a three-year trial period.

The Education Position was to strengthen exchange and networks between the

U.S. and Norway within research and higher education in team with the Science

Counselor at the Embassy; its goal was to work with the Science Counselor and relevant

Stakeholders toward Norways strategies for higher education cooperation with the U.S.



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Ex. 3. The job description specifically mentioned the Norwegian Association of Higher

Education Institutions and the Ministry of Education. The Business Position was to

strengthen commercial relations between the Midwest and Norway within innovation,

business development, and commerce in team with Innovation Norways representatives

in the U.S.; its goal was working toward Norways strategies for innovation,

technological, and commercial cooperation with the Midwest. The job description

specifically mentioned Innovation Norway and SINTEF. Id.

A Stakeholder Steering Committee was established to review the work of and

provide direction to the two expert positions. The Steering Committee comprised one

representative from each stakeholder institution and the Chair, Liv Finborud, who was an

MFA employee.

Innovation Norway had very little to do with Plaintiffs Education Position.

Davidsonnot Plaintiffworked closely with Innovation Norway because of its focus

on developing business for Norwegian companies. Ex. 4, Davidson Tr. 91-92. In

contrast, Plaintiff had almost no interaction with Innovation Norway. Ex. 5, Berg Decl.,

15 (Doc. 137-1). As explained by the declaration of Svein Berg, Innovation Norways

representative to the Steering Committee:

Although [the Stakeholders] wanted both positions to be successful,Innovation Norway was primarily interested in the work of the BusinessPosition and agreed to provide funding for the positions because it sawpotential benefits from the work of the Business Position.

. . .During my time working on the project, I had very little interaction withMs. Ewald.



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Id. at 7, 15 (emphasis added). Innovation Norways limited role in Plaintiffs

employment is confirmed by the fact that of the thousands of pages of documents

produced by the Embassy regarding the Steering Committee, there are no

communications exclusively between Plaintiff and Mr. Berg. Schroeder Aff., 8.

III. The Embassys Legal Holds.

By way of a phone call and demand letter from her counsel, Plaintiff first

threatened litigation in March 2011. Fischer Aff., 2-3. The parties engaged in

unsuccessful settlement discussions in April and May 2011. Id. at 4.

In April 2011, the Embassy sent a legal hold to a variety of individuals identified

in Plaintiffs March 2011 demand letter. Schroeder Aff., 2. Plaintiff sued in July 2011,

naming as defendants the Royal Norwegian Embassy and Gary Gandrud. Doc No. 1-1.

As discovery commenced and the litigation unfolded, the Embassy updated its legal hold

in July 2012, September 2012, and October 2012. Schroeder Aff., 2.

Despite Plaintiffs recent allegation that Innovation Norways documents are now

critical to this lawsuit, Plaintiff never identified Innovation Norwayor its representative

on the Steering Committeeas having information relevant to this lawsuit in her twice-

amended Initial Disclosures or in her interrogatory answers (even though her disclosures

have been amended as recently as November 2013).4 Plaintiff did, however, identify the

4 On July 25, 2012, Plaintiff served her Initial Disclosures. Plaintiff listed

individuals likely to have discoverable information relative to disputed facts allegedwith particularity in the pleadings and subjects of information. Ex. 6, Pls Rule 26(a)(1)Disclosures at 2. Plaintiff identified the several individuals, including: (1) MortenAasland Ministry of Foreign Affairs; (2) Lars AukrustRoyal Norwegian Embassy; (3)Christina CarletonRoyal Norwegian Honorary Consulate General; (4) Anders



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MFA employee who served as Chair of the Steering Committee, Liv Finborud, as a

person having knowledge related to her claims. Ex. 6, at 2. The MFA, as Plaintiffs

employer, had archiving and preservation responsibility for documents relating to her

employment, including documents regarding the Steering Committee.

DavidsonMinneapolis, MN; (5) Liv Mrch FinborudHead of Steering Committee; (6)Aud KolbergDirector General of Human and Financial Resources Department; (7) GaryGandrudRoyal Norwegian Honorary Consulate General; (8) Lars HenieRoyalNorwegian Embassy; (9) Jan Aage LarsenRoyal Norwegian Embassy; (10) Berit JohneRoyal Norwegian Embassy; (11) Former US Vice President Walter F. MondaleMinneapolis, MN, (12) Elin Bergithe RognlieRoyal Norwegian Embassy; (13)Ambassador Wegger C. StrmmenRoyal Norwegian Embassy; (14) Johan VibeRoyalNorwegian Embassy; and (15) Elisabeth WembergRoyal Norwegian Embassy. Id. at 2-

3 (emphasis added). Plaintiff provided a catch all category for [c]urrent and formeremployees of Defendant Royal Norwegian Embassy. Id. at 2 (emphasis added).Plaintiff noted: Additional persons may be identified as discovery continues. Id. at 3.

On April 10, 2013, Plaintiff supplemented her disclosures and added 11 additionalindividuals likely to have discoverable information: (16) John BrekkeBrekkeConsulting, Inc., (17) Marius HansenTysvar LLC, (18) Urd MilburyRoyal NorwegianEmbassy; (19) Kermit NashGray Plant Mooty; (20) Lois QuamTysvar LLC; (21) JuddSheridanUniversity of Minnesota; (22) Ivar Sorenson; (23) Kjell BerghHonoraryConsulate of the United Republic of Tanzania; (24) Paul PribbenowAugsburg College;(25) Richard TorgersonLuther College; and (26) Curt RiceUniversity of Tromso,

Norway. Ex. 7, Pls Supp. Rule 26(a)(1) Disclosures at 4-5.On November 19, 2013, Plaintiff again supplemented her Initial Disclosures by

adding five additional individuals likely to have discoverable information: (27) JeffreyMueller; (28) Patrick KullmanCG3 Consulting; (29) Katherine H. Tunheim; and (30 and31) Ola Haugen and Simen Smeby LiumWikborg Rein & Co. Ex. 8, Pls Second Supp.Rule 26(a)(1) Disclosures at 6. Plaintiff also included a catch-all: Any person who mayhave relevant information and whose identity becomes known. Id.



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IV. The Embassys Work In Responding To Plaintiffs Discovery Requests.

Much of the extensive work of the Embassy and its counsel to respond to

Plaintiffs discovery requests is described in the Embassys memorandum opposing

Plaintiffs earlier motion to compel. See Doc. 116, at 2-13. In summary:

Prior to the commencement of discovery, the parties did not discuss theproduction of discreet forms of ESI, such as text messages, or imaging ofdevices. Id. at 4.

This Court held a pretrial conference in July 2012, in which it told the partiesto reach agreement on e-discovery issues at the time to avoid sideshowslater. Id. at 5. Afterwards, there were no substantive discussions among

counsel regarding the specific types of ESI that would be preserved, collectedand produced in this matter.

In October 2012, the Embassy responded to Plaintiffs discovery requests. InDecember 2012, the Embassy sent the court and Plaintiff a Diplomatic Note,which included a list of the discovery that the Embassy was willing to provide.Plaintiff did not challenge the limits that the Embassy had drawn. Id. at 6.

In December 2012, the parties counsel agreed to use a set of six search termsto search the email accounts of a variety of MFA custodians. Id. at 7; Ex. 9,

Doc. No. 117-5, Email from J. Schroeder to S. Fischer (Dec. 13-14, 2012).After Plaintiffs counsel agreed to the use of six search terms to search theemails of MFA employees, the Embassy ran the search terms and provided thesearch-term hits to its counsel. Plaintiff never asked that the Embassy runsearches on the documents of Innovation Norway, or any other Stakeholder.Schroeder Aff., 3.

Among other things, the Embassys counsel reviewed over 187,000 pages ofpotentially-responsive documents that had been collected. On December 3,2012, the Embassy began producing documents on a rolling basis. Less than a

month later, the Embassy had produced 62,481 pages of documents. In total,the Embassy has produced 89,001 pages of documents as illustrated by thefollowing chart. Doc. 116, at 7-8.



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Production

CD Date Produced Bates Range No. of Pages

1 12/3/2012 RNE 00001-5796 5,796

2 12/7/2012 RNE 05797-22402 16,606

3 12/14/2012 RNE 22403 -41434 19,032

4 12/21/2012 RNE 41435-62481 21,0475 1/11/2012 RNE 62482-62534 53

6 1/24/2013 RNE 62535-87889 25,355

7 2/18/2013 RNE 87890-88985 1,096

8 7/8/2013 RNE 88986-88994 9

9 10/18/2013 RNE 88995-89001 7

89,001 pages produced5

The Embassys search and other collection efforts gathered documentsregarding the work of the Steering Committee. Schroeder Aff., 7. Thesedocuments include formal minutes of meetings, emails summarizing meetings

in which minutes were not taken (for example, the person responsible fortaking minutes was sick), and internal communications regarding the work ofthe Steering Committee. Id. For example, Mr. Bergs name appears on 933documents in the Embassys production. Id.

In October 2012, the Embassy asked the six Stakeholder representatives tovoluntarily search for and collect relevant documents in their possession.Schroeder Aff., 9. Mr. Berg represented that he did not save any documentsfrom that time. Id.

After 99.9% of the Embassys document production had been completed, theEmbassy produced and Plaintiff deposed ten witnesses on two continents,including depositions in Norway, Spain, and Belgium. Doc. 116, at 9.

V. The Embassy Preserves Electronic Equipment.

A. Plaintiffs Embassy-Provided LaptopThe Embassy provided Plaintiff with a laptop computer. Plaintiffs laptop crashed

in January 2010 and the Embassy provided her with a new laptop. Ex. 10, Email from E.

5 As the Court is well aware, 89,001 pages of documents is a truly extraordinary

amount of documents to produce in a single-plaintiff employment case. Even Plaintiffscounsel was shocked by the amount of documents produced: I have never seen theproduction of 90,000 pages of documents in a single[-p]laintiff employment case. Doc.No. 110, Affidavit of Sheila Engelmeier, 41 (July 29, 2013).



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Ewald to M. Walther (Feb. 2, 2010). In response to an email inquiry from an Embassy

I.T. representative about how Plaintiff and the new laptop were doing, Plaintiff explained

that she lost everything on her previous laptop:

Thank you. It is going great. I am back in Minneapolis now. I got a newlaptop (lost everything on the other [laptop] :-( - Really dumb!).

Id.

Plaintiff never claimed her old laptop (from which she lost everything) should

have been preserved when she threatened litigation (in March 2011), commenced

litigation (in July 2011), or at the Rule 26(f) conference (in June 2012).6

Though the

Embassy had no obligation to preserve Plaintiffs initial laptop, the Embassy did preserve

the laptop she was using at the time her employment ended. Doc. No. 140, at 8-9;

Doc. No. 120, Gleason Aff., 4.

B. Ewalds and Gandruds Mobile PhonesThe Embassy also preserved, but never attempted to access until December 2013

(when directed to do so by the Court), Plaintiffs Embassy-issued phone. Doc. No. 120,

Gleason Aff., 4. Gandrud did not have an Embassy-issued phone. Schroeder Aff.,

11.

Plaintiff did not raise the issue of text messages until May 31, 2013, and the

Embassy opposed Plaintiffs request for a variety of reasons. See, e.g., Doc. No. 110-23,

6 And, everything evidently was not lost as Plaintiff forwarded on March 9, 2011

from her new laptop to her personal email account 547 Embassy documents to herself,including many that pre-dated the January 2010 laptop crash. Schroeder Aff., 6.



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In any event, Gandrud had a mobile phone as an attorney of the (then) law firm

Faegre & Benson, LLP. Ex. 11, Letter from J. Schroeder to Judge Nelson, at 2 (Dec. 23,

2013). Attorneys are required to return their firm-issued phone when the attorneys

association with the law firm ends. Id. Data from phones is then removed. However, all

data from the phone is not lost. For example, emails are stored on the law firms server.

Text messages sent to and from Gandruds phone were not stored on the server. Id.

Among the 89,001 pages of document produced, there is a single email, sent on

February 23, 2011, in which Gandrud indicates that he sent a text message the previous

day. The document is Bates labeled RNE 835 and was among the first 900 pages of

documents produced by the Embassy on December 3, 2012. Ex. 12, RNE 835. Plaintiff

did not ask Gandrud about that document or text messages when he was deposed three

months later (on March 4, 2013).9 Schroeder Aff., 10. Nor did Plaintiff ask Christina

Carleton (who is mentioned in the email) any such question when she was deposed a few

days later (on March 8, 2013). Id. Plaintiff also did not ask Ambassador Strmmenthe

recipient of the email (and text)about the email (or text) when he was deposed more

than eight months after the document was produced (on July 11, 2013). Id. This is

especially surprising when six weeks earlier Plaintiffs counsel specifically mentioned

RNE 835 in her 17-page, pre-mediation deficiency letter. Doc. No. 110-22, Letter from

Sheila Engelmeier to Joel Schroeder, at 14 (May 31, 2013).

9 Plaintiffs counsel marked 55 documents as exhibits during Gandruds 7+-hour

deposition, including several documents surrounding RNE 835. Schroeder Aff., 10(e.g., RNE 975-79 (Dep. Ex. 26); RNE 952-53 (Dep. Ex. 28); RNE 1068 (Dep. Ex. 32);RNE 522-26 (Dep. Ex. 44); RNE 1082-83 (Dep. Ex. 48); RNE 1135 (Dep. Ex. 66)).



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VI. Plaintiff Uses Norways FOIA Process to Seek The Same Documents from the

Embassy and the Stakeholders That She Sought In Discovery In The U.S.

In addition to Plaintiffs requests for production of documents (and despite her

claim that the burden of reviewing the documents produced by the Embassy was far too

great to manage), Plaintiff hired a Norwegian law firm to request documents from the

Norwegian government through Norways version of the Freedom of Information Act:

the Public Administration Act (PDA). Plaintiff sent initial requests and deficiency

letters to the Royal Norwegian Embassy in Washington, D.C., the Honorary Consulate in

Minneapolis, and many of the Stakeholder institutions.

At great time and expense to its staff, the MFA and the Stakeholder institutions

responded to Plaintiffs requests. The Norwegian government produced documents to

Plaintiffs Norwegian counsel. Every document Plaintiff produced that she received in

response to her Norwegian FOIA requests to the Stakeholders that involved

communications with MFA, Embassy, or Consulate personnel were also produced to

Plaintiff by the Embassy in discovery. Schroeder Aff. 13. Any document Plaintiff has

produced as a result of the FOIA requests that falls outside of what the Embassy

produced to her is either (a) ministerial in nature or (b) not material in terms of shedding

light on any of the issues in this case. Id. Tellingly, Plaintiff has not put forth a single

document from any Stakeholder that would indicate relevant documents exist that have

not already been produced to her.

In response to the request that it received, Innovation Norway stated that because

it was not Plaintiffs employer, the MFAnot Innovation Norwayhad responsibility



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for maintaining documents related to Plaintiff.10

Pls Ex. G. Innovation Norway stated

that its representative to the Steering Committee would have received Steering

Committee-related information directly and could conclude that a document should be

archived, but otherwise emails would have been deleted. Innovation Norway further

explained that the cost of attempting to retrieve deleted email would be prohibitive,

particularly since that material could be obtained from the MFA. In fact, this information

had already been obtained from and produced by the Embassy. See Schroeder Aff., 8

(in the Embassys production, 933 documents contain Mr. Bergs name; 107 documents

are emails where Berg is the sender or recipient of an email).

In responding to the complaints of Plaintiffs Norwegian lawyers11

regarding the

PDA response, and according to the uncertified translation provided by Plaintiff,

Ambassador Strmmen did not state that Innovation Norway is a part of theEmbassy.

Contra Pl. Mem. at 12-13; Ex. 13 (Doc. No. 183). Ambassador Strmmen stated that

when the MFA appoints a working group that includes external members,

communications between the MFA and working group members are internal documents.

10 Plaintiffs Norwegian counsel specifically asked about the Steering Committeeminutes, which had been produced pursuant to the Federal Rules of Civil Proceduremonths earlier.

11

Plaintiffs counsels direct communications with a represented party raise seriousethical issues. See Minn. R. Profl Conduct 4.2 (In representing a client, a lawyer shallnot communicate about the subject of the representation with a person the lawyer knowsto be represented by another lawyer in the matter, unless the lawyer has the consent of theother lawyer or is authorized to do so by law or a court order.); Id., at Comment 2 (Thisrule applies to communications with any person who is represented by counselconcerning the matter to which the communication relates.).



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Ex. 13, at 10-11. Such internal documents were not required to be disclosed under

Norwegian law because confidentiality is an important prerequisite for thoroughness and

integrity of internal decision-making processes.12 Id. at 12.

In fact, the Embassy had produced during discovery thousands of pages of

documents from the Stakeholders, including emails where the Innovation Norway

representative at the Steering Committee was the sender or recipient, emails where other

Stakeholder representatives were the sender or recipient of the email, and emails from the

Embassy or MFA staff to the Stakeholders. Schroeder Aff., 7. In addition, the

Embassy and Plaintiff produced hundreds of documents regarding the Stakeholder

representatives various meetings, including multiple copies of the final minutes of the

meetings of the Steering Committee regarding [Plaintiffs] employment that Plaintiff

appears to claim are missing. Compare Schroeder Aff., 7, with Pls Mem. at 10.

VII. This Courts Denial of Plaintiffs Motion to Compel.

Plaintiff moved to compel. On October 8, 2013, this Court denied the substantive

aspects of Plaintiffs motion to compel.13

Plaintiff appealed that Order to Judge Nelson,

continuing to press for additional discovery, including imaging and analysis of a variety

of mobile phones and other devices.

12 Though an important distinction under Norwegian law, such internal discussion

documents had been produced pursuant to discovery nine months earlier.

13 The court ordered that the Embassy produce a privilege log regarding a limitednumber of documents. Neither party challenged that aspect of the Order.



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VIII. Judge Nelson Affirms This Courts Order In Its Entirety, With One

Exception.

On November 20, 2013, Judge Nelson issued an order affirming almost every

aspect of this Courts Order. Ex. 14, Order (Nov. 20, 2013) (Doc. 161) (J. Nelson

Order).

Among other denials of Plaintiffs many requests, Judge Nelson concluded that

Plaintiff was not entitled to discovery from the initial laptop she used during her

employment, stating:

[Plaintiff] has indicated that she used one laptop through January 2010 anda second laptop for her remaining time at the Embassy, but that theEmbassy has produced no information from the first laptop. The Embassyargues that Ewald first raised the issue of her initial work laptop in her oralargument on this motion and that the Embassy was under no obligation topreserve that laptop in 2010 when it crashed.

The Court affirms the Magistrate Judges Order with respect to theselaptops. As for the more recently-used laptop, the Embassy stated in itsresponses to Document Request Nos. 27 and 28 that it reviewed that laptop

and produced 56,625 pages of documents from that laptop. Moreover, asdiscussed above, the issues with the electronic information produced by theEmbassy have been addressed, rendering the forensic examinationunnecessary. As for the initial laptop, Ewald has not asserted even a

belief that relevant information existed on that computer that has not

been produced from other sources. Therefore, the Court finds that the

burden and expense of the requested discovery relating to Ewalds work

laptops outweigh its likely benefit.

Id. at 17 (emphasis added).

Judge Nelson reversed this Courts Order in one respectthe collection and

production of text messages and voice messages contained on the Embassy-provided

mobile devices of Plaintiff and Gandrud. Id. at 1, 20-21. Judge Nelson explained that

because Plaintiff had demonstrated a likelihood that relevant information is contained on



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certain Embassy-provided devices, the likely benefit of the proposed discovery

outweighed its burden and expense. Id. at 20. Judge Nelson denied Plaintiffs attempt to

recover the personalmobile devices belonging to any witnessincluding Gandrud and

Davidsonbecause Plaintiff has not demonstrated her entitlement to such devices, and

she has had ample opportunity to conduct that discovery. Id. at 21. The parties were

ordered to meet and confer regarding a protocol for the collection and production of

Plaintiffs and Gandruds Embassy-provided mobile phones. Id. The parties agreed on a

protocol with respect to Plaintiffs phone, but have been unable to access Plaintiffs

Embassy-provided mobile phone because Plaintiff cannot remember the password. Doc.

No. 189. The parties are currently exploring alternative, non-traditional methods for

accessing Plaintiffs Embassy-provided mobile phone. Id.

ARGUMENT

I. Legal Standard.

It is the moving partys burden to show spoliation. Stevenson v. Union Pac. R.R.

Co., 354 F.3d 739, 745 (8th Cir. 2004). The moving party must prove: (1) the adverse

party destroyed potential evidence; (2) the potential evidence was discoverable; and (3)

the loss of the evidence caused prejudice to the moving party. Duy Ngo v. Storlie, No.

03-3376, 2006 WL 1046933, at *3 (D. Minn. Apr. 19, 2006) citing Stevenson, 354 F.3d

at 745; Lexis-Nexis v. Beer, 41 F.Supp.2d 950, 954 (D. Minn. 1999).14 Intent is the

paramount consideration in deciding a motion for spoliation sanctions. Gallagher v.

14 [F]ederal law applies to the imposition of sanctions for the spoliation ofevidence. Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir. 2012).



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Magner, 619 F.3d 823, 844-45 (8th Cir. 2010). Before a court may issue a spoliation-

of-evidence sanction, there must be a specific finding of intentional destruction

indicating a desire to suppress the truth. Greyhound Lines, Inc. v. Wade, 485 F.3d 1032,

1035 (8th Cir. 2007) citing Stevenson, 354 F.3d at 746.

II. Text Messages From Gandruds Non Embassy-Provided Mobile Phone Are

Not Discoverable and Plaintiffs Failure to Take Any Action to Obtain the

Information By Other Means Precludes A Finding of Prejudice.

A. The Court Ruled that Text Messages From Non-Embassy Provided

Mobile Devices Are Not Discoverable.

The parties and the Court have already spent significant time and effort

determining what is discoverable in this case in the briefing and argument regarding

Plaintiffs motion to compel. The Embassy had advised both Plaintiff and the Court that

it had not taken steps to collect or produce text messages because, among other reasons,

there had been no indication from the pleadings, the 26(f) conference, discovery, or any

other source that text messages would be relevant to Plaintiffs claims. Doc. No. 116 at

30. Plaintiffs motion was initially denied when first considered. M.J. Rau Order at 9.

Plaintiff objected. Doc. No. 139.

In largely affirming denial of Plaintiffs motion, Judge Nelson determined that text

messages from two specific devices were discoverable: the mobile phones provided by

the Embassy to Ewald and Gandrud for work-related purposes. Id. at 21 (emphasis

added). The Court determined Ewald is entitled to discovery of relevant text messages

and voice messages contained on those devices. Id. Judge Nelson chose her language

deliberatelyonly text and voice messages from Embassy-provided mobile phones were



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deemed discoverable. Id. The Court made clear that information from devices not

provided by the Embassy was not discoverable: Nor will the Court order production of

thepersonalmobile devices belonging to any witness. Id. (emphasis added).Plaintiff

did not produce any text message from her personal mobile phone in discovery.

Schroeder Aff. 12. Nor did Plaintiff, prior to May 31, 2013, claim that she sent

discoverable text messages on her Embassy-provided mobile phone. See Doc. No. 110-

22, at 14 (noting for first time alleged prevalence of text messages). Plaintiff withheld

that information until discovery was almost completed. Because the Court has already

ruled that mobile devices not provided by the Embassy do not fall within the category of

discoverable material, Plaintiff cannot prove spoliation.

B. Plaintiff Cannot Show Prejudice Because She Made Absolutely No

Effort to Obtain the Information By Other Means.

Plaintiff points to one email in the over 89,000 pages of documents produced in

this caseRNE 835that references a text message. Pls Mem., at n. 3. That email was

produced to Plaintiff on December 4, 2012. Schroeder Aff. 10. Three months after

Plaintiff received the email, her counsel deposed Gandrud. Id. During the deposition,

counsel for Plaintiff questioned Gandrud regarding 55 different documents spanning the

Bates-range of documents produced by the Embassy, including several documents within

pages of RNE 835. Id. Counsel for Plaintiff did not question Gandrud regarding the one

document where he referenced a text message; nor did counsel for Plaintiff even mention

the issue of text messages in over seven hours of questioning. Id.



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documents produced to Plaintiff is pure speculation. Gallagher, 619 F.3d at 844

(Appellants argue that the destroyed email files would have supported their claim of

intentional discrimination. However, appellants offer no support for such speculation;

there is no basis for inferring that the missing emails would be of a different character

than the emails already recovered and produced. Therefore, we agree that Appellants

have not demonstrated the requisite prejudice.); Koons v. Aventis Pharm., Inc., 367 F.3d

768, 780 (8th Cir. 2004) (party seeking sanctions could not show prejudice because (1)

author of lost notes regarding investigation into plaintiffs termination testified at trial;

and (2) there was no evidence that the document he created contained anything that

would have harmed [defendant] or helped [plaintiff] in the course of this litigation.);

Escobar v. City of Houston, No. 04-1945, 2007 WL 2900581, at *19 (S.D. Tex. Sept. 29,

2007) (defendants preservation and production of other relevant information mitigated

concern about failure to preserve certain electronic communications); Saul v. Tivoli Sys.,

Inc., No. 97 Civ. 2386, 2001 U.S. Dist. LEXIS 9873, at *50 (S.D.N.Y. July 17, 2001) (In

cases where a party has had the opportunity to pursue discovery but has not aggressively

done so, the courts have gone so far as to hold that the subsequent improper destruction

of once-available evidence by the other side should not trigger any spoliation

sanctions.).16

16 Plaintiffs claim that the Embassy was obligated to preserve text messages is based

entirely on hindsightnamely, the one email Plaintiff points to that referenced a textmessage. It is well established that hindsight cannot be the basis for an after-the-factclaim that a partys preservation efforts were unreasonable, let alone grounds forsanctions. Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216, 226(E.D. Pa. 2008) ([H]indsight should not carry much weight, if any, because no matter



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Awarding sanctions to Plaintiff under these circumstances would reward precisely

the kind of discovery abuse the Federal Rules seek to dispelby encouraging parties

who do nothing to obtain allegedly missing information during the discovery period to

wait until the eve of trial and seek an award for their inaction in the form of sanctions.

III. Judge Nelson Has Already Ruled that Plaintiffs Previous Work Laptop Was

Not Discoverable and that Plaintiff Cannot Show Prejudice.

Plaintiff moves for sanctions on the basis of the Embassy destroying a physical

laptop computer from which Plaintiff herself said she had lost everything after it

crashed in January 2010. Pls Mem. at 1; Ex.10. Judge Nelson has definitively ruled the

laptop was not discoverable and Plaintiff cannot show prejudice.

In her motion to compel, Plaintiff sought production of her work laptops that she

used while employed by Defendant. Doc. No. 109, at 18. Plaintiffs request was

denied. Ex. 1, M.J. Rau Order at 9. Judge Nelson rejected Plaintiffs appeal, stating:

As for the initial laptop,Ewald has not asserted even a belief that relevantinformation existed on that computer that has not been produced fromother sources. Therefore, the Court finds that the burden and expense ofthe requested discovery relating to Ewalds work laptops outweigh its likelybenefit.

what methods an attorney employed, an after-the-fact critique can always conclude that abetter job could have been done.); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217

(S.D.N.Y. 2003) (Zubulake IV) (Must a corporation preserve every shred of paper,every e-mail or electronic document, and every backup tape? The answer is clearly no.Such a rule would cripple large corporations.); see Columbia Pictures Indus. v. Bunnell,No. CV 06-1093, 2007 WL 2080419, at *3-6 (C.D. Cal. May 29, 2007) (no duty topreserve temporarily-stored electronic files where producing party had no reason toanticipate it would be sought and requesting party first asserted duty to preserve in amotion). Tellingly, Plaintiff has not produced a single text message in this case and onlyraised the issue at the end of discovery.



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Ex. 14, J. Nelson Order, at 17 (emphasis added). Indeed, as Judge Nelson noted, the

Embassy reviewed and produced over 56,000 pages of documents from Plaintiffs laptop.

Id. Indeed, 5,337 of those documents from Plaintiffs laptopconsisting of 22,764

pages of materialwere dated January 2010 or earlier. Schroeder Aff. 6.17

As Judge

Nelson already found, Plaintiff cannot show that any relevant information from her

previous laptop has not already been produced. Plaintiffs claim that the Embassy

destroyed her first laptop is outright misleading and should be rejected.18

IV. Plaintiff Has Already Been Provided Documents Related to The Steering

Committee and The Embassy Repeatedly Defined The Scope of Its Searchand Plaintiff Never Took a Contrary Position.

As Plaintiff reiterates in her brief, her Complaint nam[ed] The Royal Norwegian

Embassy and Gary Gandrud as defendants. Pls Mem. 3. Plaintiff did not sue the

Government of Norway, nor in her multiple disclosures and discovery responses did

she name Innovation Norway or its representative to the Stakeholder committee as

possessing discoverable information. Yet Plaintiff now claims she is entitled to sanctions

because the Royal Norwegian Embassy was obligated to produce Innovation Norways

documents. Plaintiffs request fails for multiple reasons.

17

As Plaintiff and her counsel may be aware, a computer crashing is not like losing afile cabinet. Most electronic documents are saved to a server, from which the Embassyproduced them to Plaintiff.

18 Plaintiffs hyperbole in this regard is disingenuous, claiming the Embassy

cleverly failed to reveal that it discarded her former laptopthe laptop she herselfknew had crashed and from which she claimed to have lost everything. Pls Mem. at6, n. 4; Ex. __.



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One, Plaintiffs motion overreaches with no legal support. Plaintiff claims the

entire Government of Norway had an obligation to preserve documents. Pls Mem. 12.

Plaintiff can point to no case where a lawsuit against one unit (here, the Royal Norwegian

Embassy in Washington, D.C.) of one government agency (here, the Ministry of Foreign

Affairs) compelled all agencies of that government to preserve documents.

Two, the Embassy did not destroy potential evidence; it took reasonable steps to

preserve and collect it. As a result of the herculean document-collection efforts in this

case, Plaintiff possesses hundreds of documents regarding the Steering Committee,

including meeting minutes, emails where the Innovation Norway representative to the

Steering Committee was the sender or recipient, emails where other Stakeholder

representatives were the sender or recipient of the email, and emails from the Embassy or

MFA staff to the Stakeholders. Schroeder Aff., 7. Under these circumstances, there is

no prejudice to Plaintiff. See Escobar, 2007 WL 2900581, at *19 (defendants

preservation and production of other relevant information mitigated concern about failure

to preserve certain electronic communications).

Three, it is also critical that, here again, Plaintiff was notified throughout

discovery of precisely what the Embassy would and would not produce. As discussed

above, the parties counsel dialogued and agreed that the Embassy was going to run

search terms only on the email accounts of a variety of MFA custodians; not on the email

accounts of Innovation Norway or any other Stakeholder. Ex. 9. Plaintiffs counsel did

not object to this plan; she specifically agreed. And, as this Court previously found, the

Embassy explicitly notified Plaintiff on December 3, 2012 that it would only provide a



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limited waiver of the inviolability of the archives and documents on file with the

Consulate General in Minnesotaand theEmbassy in Washington D.C. Ex. 1, M.J. Rau

Order at 4 (emphasis added). Plaintiff was told explicitly what entities would be

producing documents to her. As this Court already found, Plaintiff did nothing to

challenge the Embassys discovery limits until the eve of a private mediation over six

months later. Id.; see also Saul, 2001 U.S. Dist. LEXIS 9873, at *50 (in cases where a

party has had the opportunity to pursue discovery but has not aggressively done so, the

courts have gone so far as to hold that the subsequent improper destruction of once-

available evidence by the other side should not trigger any spoliation sanctions.). After

extensive review and discussion, the limits that the Embassy placed on discovery were

sustained by Judge Nelson. Ex. 14, J. Nelson Order at 7-12.

Four, the documents cited by Plaintiff in support of her claim of spoliation do not

say what she claims they say.19 According to Plaintiffs translation, Ambassador

Strmmen said that under Norwegian FOIA law, the members of the Steering

Committeei.e., the individual representatives of the Stakeholder institutionswould

be considered part of the Ministry of Foreign Affairs and the correspondence between the

Ministry and the Steering Committee Memberswill be considered internal documents.

Ex. 13, Doc. No. 183 at 11 (emphasis added). Indeed, and fatal to her claim of prejudice,

the Embassy produced to Plaintiff hundreds of documents from the Steering Committee.

19 Plaintiff filed this uncertified translation of a document submitted in opposition to

the Embassys motion for summary judgment on January 16, 2014. Doc. No. 183.Plaintiffs opposition brief and supporting materials were due on November 6, 2013. SeeDoc. Nos. 142-158.



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Accordingly, Plaintiff cannot show Innovation Norway lost any discoverable

information or that she suffered any prejudice, much less that the Embassy took steps to

intentionally destroy documents in order to suppress the truth. Plaintiffs motion for

sanctions in this regard is yet another tactic to profit from her own failure to take action

in discovery.

CONCLUSION

For all the reasons stated above, the Embassy respectfully requests that the Court

deny Plaintiffs Motion for Sanctions in its entirety, award the Embassy its full attorney

fees and costs in opposing Plaintiffs Motion, and issue an opinion to dissuade litigants

from abusing the discovery process.

Dated: January 23, 2014

FAEGRE BAKER DANIELS LLP

s/ Joel P. Schroeder

Daniel G. Wilczek, MN Atty #[email protected]

Joel P. Schroeder, MN Atty #[email protected] R. Somermeyer, MN Atty #0391544

[email protected]

2200 Wells Fargo Center90 South Seventh StreetMinneapolis, MN 55402-3901Phone: (612) 766-7000

Attorneys for DefendantRoyal Norwegian Embassy

dms.us.53509943.09


191 D Memo Oppose Motion for Sanctions

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