Cont'l Cas. Co. v. Compass Bank

Cont'l Cas. Co. v. Compass Bank

Opinion

ORDER

This cause is before the Court on plaintiff's omnibus motion for sanctions (Doc. 158), the defendant's response (Doc. 167), plaintiff's reply brief in further support of the omnibus motion (Doc. 172), defendant's objection to plaintiff's motion for leave to file a reply brief in support of its omnibus motion (Doc. 174), plaintiff's response to defendant's objection (Doc. 189), plaintiff's supplemental submission in further support of its omnibus motion for sanctions (Doc. 233), defendant's response to plaintiff's supplemental submission (Doc. 239), and plaintiff's motion for leave to file reply brief in support of its supplemental submission (Doc. 241) ¹ [*3] . Having considered the contents of all of these pleadings, ² this order is entered pursuant to 28 U.S.C. § 636(b)(1)(A)  [*2]  and Local Rule 72.2(a).

Through this omnibus motion for sanctions, plaintiff seeks serious sanctions against Compass, including entry of judgment, striking of defenses or other appropriate relief, based upon what plaintiff characterizes as Compass Bank's spoliation of evidence, violation of discovery and sanction orders, and submission of false affidavits to the Court. (Doc. 158)

As to Compass' spoliation of evidence, after months of unsuccessful attempts to ascertain basic account information as to Elaine Howe's fraud account -- including multiple motions to compel and court orders requiring the production of such information and imposing sanctions -- Continental has recently learned through the admission of a Compass employee that Compass altered its records in late May or June 2002 to delete "c/o Radney Funeral Home" from the account name. This deletion came after Howe had been arrested, after Compass had [*4]  turned away SCI's fraud investigator when he requested information about Howe's fraud scheme, and even after Compass had received a subpoena from the Mobile District Attorney's office on May 16, 2002 for Howe's records.

After Continental learned of this inexplicable destruction of key evidence, its counsel attempted to question Compass' Rule 30(b)(6) witness about this deletion, as well as other topics. The witness, having admitted that she had looked at but a handful of documents for one of Howe's eight accounts at Compass and prepared for only a couple hours, was utterly unable to testify as to Compass' knowledge regarding this deletion, nor many other topics. As a matter of law, this constitutes a failure to appear for the deposition by Compass and calls for sanctions.

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