This matter arises out of a wrongful death action against Defendants Burlington Northern
Santa Fe Corporation, The Burlington Northern and Santa Fe Railway Company, and BNSF
Railway Company (collectively “BNSF”) for its involvement in the September 26, 2003 Ferry
Street Crossing accident which resulted in the death of four young adults.1 After a six-week trial,
a jury awarded Plaintiffs damages in the amount of $24,000,000.00. After finding BNSF 90% at
fault, judgment in the amount of $21,600,000.00 was entered against BNSF. Entry of Judgment
was stayed to allow the parties to file their post-trial motions.
The motion presently before the Court originally was scheduled to be heard in November,
2008, but was cancelled when a mediated settlement appeared imminent. Unfortunately,
settlement negotiations failed and counsel stipulated that post-trial costs and sanctions motions
would be heard in April, 2009. Almost from the inception of this case, Plaintiffs have alleged
that BNSF has engaged in the systematic abuse of the civil ligation process, including, inter alia,
the loss, destruction, and/or alteration of critical evidence, misrepresentations to this Court and
Plaintiffs, and the general obstruction of Plaintiffs‟ ability to prosecute their case. Plaintiffs now
request that this Court impose sanctions against BNSF for their pervasive misconduct in these
I. BNSF’S MISCONDUCT
Allegations of BNSF‟s misconduct in this case are both plentiful and well-documented.
Plaintiffs contend that BNSF engaged in a systematic exploitation of the civil-justice system of a
pervasiveness seldom seen outside of John Grisham novels. Although BNSF admits that
“evidence was certainly bungled,” it attempts to casually explain away each instance of
Before trial, Plaintiff Frazier entered into a Pierrenger agreement with the other Plaintiffs and the case was
consolidated for the remaining proceedings.
misconduct2 as the product of inadvertence, coincidence, and/or honest mistake. During the
April 21, 2009 sanctions hearing, BNSF‟s recently substituted counsel3 even ventured to offer an
entirely new theory that had never even been alluded to during discovery or at trial in yet another
veiled attempt to explain away BNSF‟s misconduct.
BNSF contends further that its misconduct opened the door for Plaintiffs, resulting in a
multimillion dollar verdict in Plaintiffs‟ favor and that BNSF was the only party harmed by its
own misconduct. Essentially, BNSF has thrown its hands in the air and rhetorically asked: why
do bad things happen to good companies? Looking past these polarizing perspectives, this Court
finds that BNSF did, indeed, engage in so many instances of misconduct that, when viewed in
their totality, there can be no question for this Court that considerable sanctions are in order.
BNSF tried, in earnest, throughout its submissions and at oral argument to confine Plaintiffs‟
sanctions allegations to spoliation. Spoliation is defined as the destruction of evidence or the
failure to preserve property for another's use as evidence, and may constitute an obstruction of
justice. See Federated Mut. Ins. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436
(Minn.1990). Under that definition, it is obvious to this Court that BNSF‟s misconduct went
well beyond spoliation and encompassed other abuses as well.
This Court does not find, however, that BNSF‟s actions constitute “one of the largest
miscarriages of justice perpetrated in American history,” as Plaintiffs would have this Court
believe. Rather, this Court has examined BNSF‟s misconduct within the purview of sanctions-
Misconduct is defined as “[a] dereliction of duty; unlawful or improper behavior.” Black's Law Dictionary (8th ed.
BNSF‟s new counsel, who had absolutely no involvement in the six-week jury trial that ended in the
$24,000,000.00 verdict, argued that Mr. Hildebrant, BNSF‟s corporate designee for the entire trial and one of
BNSF‟s primary witnesses, was, in essence, a rogue employee whose actions, which included, inter alia, lying under
oath, losing, destroying, and/or tampering with critical evidence in this case, were outside the scope of his
employment. This rogue employee theory, which this Court soundly rejected at the hearing, on the record, is
discussed at greater length in the bad faith section of this Memorandum.
related statutes, rules, and case law, along with the inherent authority of the court to impose
sanctions and will tailor her findings accordingly.
1. Spoliation and Discovery Abuses
Plaintiffs contend that BNSF destroyed, altered, misplaced, and/or mishandled evidence
at nearly every phase of these proceedings. BNSF admits that it “bungled” evidence, engaged in
“sloppy evidentiary maintenance and preservation,” and that “there has been clear and
convincing showing of negligence.” (April 21, 2008 Tr., BNSF Attorney Thornton at 25) In the
same breath, however, BNSF also attempts to explain away its mishandling of evidence by
claiming that it legitimately destroyed and/or misplaced evidence. As previously noted, BNSF
has now taken the position, at this ridiculously late stage in the proceedings, that nearly all of this
alleged misconduct can be attributed to one rogue employee, Craig Hildebrant. This Court finds
that BNSF committed substantial evidentiary and discovery abuses which, when considered
together, warrant significant court-imposed sanctions.
a. HXP and HCA Downloads
As a large railway company, BNSF maintains HXP and HCA event recorders at its
crossings. These event recorders monitor the speed of an approaching train and ensure that there
is adequate warning time at the crossing grade. The recorders also monitor the performance of
the gates and lights at the crossings. Both parties appear to agree that authentic and tamper-free
data from these recorders would provide definitive proof that the gates were either working
properly or malfunctioning at the time of the accident. Unfortunately, in this case, the data from
these event recorders were not tamper free and can no longer be authenticated.
Evidentiary abuses with the handling of data from the event recorders occurred within
minutes of the accident and continued through trial.4 On the night of the accident, BNSF
employee Craig Hildebrant violated BNSF policy by downloading the recorder data to his laptop
without a reliable witness present in the “bungalow” which housed the HXP and HCA event
recorders at the time of the data transfer. Mr. Hildebrant, according to other BNSF employees,
made a write-protected disk of the recordings and printed two paper copies as well. The paper
copies, however, were only partial downloads of the recorder data.
Ultimately, without Plaintiffs‟ knowledge, the word processing documents were uploaded
onto Mr. Hildebrant‟s H drive. Mr. Hildebrant also admitted that he altered the format of the
data and changed its headings and titles shortly before the Plaintiffs‟ July 17, 2005 inspection.
Other than its own hollow assurances, BNSF has offered no credible evidence to corroborate Mr.
Hildebrant‟s testimony that he only adjusted the mnemonics on the HCA event recorder.
Mr. Hildebrant testified that he provided the write-protected disk and the paper copies to
Signal Supervisor Richard Kaiser on September 29, 2003. This write-protected disk is
particularly important because its contents and download time could easily be authenticated. Mr.
Kaiser testified that he provided the disk and the paper copies to either Lynn Ross or Robert
Hemmings in BNSF‟s claims department. Both Ms. Ross and Mr. Hemmings denied, under
oath, that they ever saw or received a copy of the disk and/or the paper downloads. Despite the
severity of the accident, imminent litigation, and the critical importance of the recorder data, no
chain of custody or any other documentation forms were ever kept for the disk or paper copies of
the downloaded data. What remains undisputed is the fact that the disk was misplaced, hidden,
For purposes of the instant sanctions motion, the allegations regarding the post-trial misconduct of BNSF and/or its
trial counsel are not now before this Court.
or destroyed within a week of the accident.5 Mr. Hildebrant‟s laptop, which contained the
original download, also was destroyed.
Mr. Hildebrant returned to the accident site to re-download the recorder data on
September 29, 2003 (the day he met with Mr. Kaiser), October 3, 2003 (one day before the FRA
inspection), and October 22, 2003.6 It appears to this Court that, at the same time BNSF
concealed its knowledge of facts related to Mr. Hildebrant‟s downloading activities, it continued
to represent to Plaintiffs and this Court that no other downloads had taken place.
The September 29, 2003 download is particularly relevant to this proceeding. Discovery
of the September 29, 2003 download was made by happenstance. During a court-ordered data
inspection on November 10, 2006, Plaintiffs witnessed Mr. Hildebrant accidentally open a file
that was downloaded on September 29, 2003. This Court ordered the data inspection, at
Plaintiffs‟ request, to allow them an opportunity to compare the partial printout that had been
provided to them by BNSF with a data file from July 2005. This was necessary because BNSF
repeatedly had represented to Plaintiffs and this Court that no other electronic version of the
recorder data existed that was relevant to the September 26, 2003 accident. Once again, this is
because the write-protected disk and Mr. Hildebrant‟s computer had been destroyed. BNSF
represented to Plaintiffs that, at that time, the September 29, 2003 download was not related to
the September 26, 2003 accident and again reiterated that no electronic versions of the recorder
BNSF informed this Court on February 13, 2006, that it was not BNSF‟s policy to maintain a write-protected disk.
This misrepresentation is included in the misrepresentation and false testimony section of this memorandum.
Mr. Hildebrant testified, under oath, that except for the one occasion shortly before the July 17, 2005 site
inspection, he never re-downloaded the recorder data and did not return to the accident site during the week after the
accident. This topic will be addressed in the misrepresentation and false testimony section of this memorandum.
Plaintiffs, who had grown increasingly suspicious of BNSF‟s position regarding the
alleged unavailability of electronic versions of the recorder data, had little choice but to file yet
another motion to compel. In that motion, Plaintiffs requested that they be allowed to search Mr.
Hildebrant‟s H drive for the September 29, 2003 download and any other files relating to the
September 26, 2003 accident.7 Plaintiffs located the September 29, 2003 file which obviously
contained data from the September 26, 2003 accident. Plaintiffs also located downloads dated
October 3, 2003 and October 22, 2003, both of which contained recorder data related to the
September 26, 2003 accident. There were also dozens of other data recorder files that were
downloaded that were unrelated to the September 26, 2003 accident, including files created after
January 2004, around the time Mr. Hildebrant claimed he last transferred data to the H drive,
and August 1, 2007, the date of Mr. Hildebrant‟s retirement.
On November 10, 2006, Plaintiffs‟ counsel Sharon Van Dyck and expert consultant Larry
Farnham attended the court-ordered data inspection at BNSF‟s Northtown Facility. During that
inspection, Mr. Hildebrant misclicked a key and inadvertently opened a file identified with the
subject Ferry Street and the date of September 29, 2003. Upon discovering this September 29,
2003 file, which, previously, Mr. Hildebrant and BNSF had denied even existed, Ms. Van Dyck
and Mr. Farnham immediately were escorted out of the room. Some time later, Ms. Van Dyck
and Mr. Farnham were allowed to return to the room where a file dated September 26, 2003 was
open on Mr. Hildebrant‟s laptop computer. BNSF counsel represented to Ms. Van Dyck that the
September 29, 2003 file that she had seen, before being escorted out of the room, was not related
to this case. By accidentally opening the September 29, 2003 file, Mr. Hildebrant allowed
Plaintiffs to discover, contrary to BNSF‟s previous representations, that there were indeed
Additional BNSF misconduct related to its handling of the recorder data and interference with access to that data is
discussed in more detail in the misrepresentation and false testimony section of this Memorandum.
electronic versions of the HCA data on Mr. Hildebrant‟s H drive. This inadvertent discovery
immediately called into question Mr. Hildebrant‟s previous assurances and representations that
he had not re-downloaded the recorder data or returned to the Ferry Street Crossing bungalow on
September 29, 2003. This is one of many instances in which BNSF‟s credibility was placed on
Shortly before Plaintiffs‟ July 17, 2005 site inspection, during which Plaintiffs‟ experts
observed Mr. Hildebrant print out the recorder data which Plaintiffs‟ experts used from that point
forward, Mr. Hildebrant again made an unaccompanied visit to the “bungalow” which housed
the event recorders. At trial, Mr. Hildebrant admitted that during that unaccompanied visit in
July, 2005, he altered the format, title, and headings of the event recorder data. Plaintiffs,
understandably, suspect that other changes may have been made to the data at that time, the night
of the accident, and other times unknown. BNSF contends that there was never any attempt on
its part to defraud or mislead Plaintiffs. BNSF continued to urge Plaintiffs and this Court to
accept as true BNSF‟s representations that it had provided Plaintiffs with unaltered paper copies
of the event recorder data showing the accident-related train movement on the evening of
September 26, 2003. Simply stated, BNSF would now have this Court find that it did not tamper
with or fabricate any of the recorder data, even though it now appears to all, including the jury,
that BNSF either lost, altered, and/or destroyed the very evidence that it claims would prove
definitively that the gates were functioning properly at the time of the accident.8
Unfortunately, there is no first-generation or native format data that is now available to
answer the question about what really happened on that fateful evening of September 26, 2003.
Further, Mr. Hildebrant has admitted to lying under oath about his handling of the recorder data
At trial, Plaintiffs‟ forensic computer analyst testified that the easiest way to manipulate computer, like the HCA
and HXP download data, is to collect a number of downloaded data files to get the “look” needed and then and paste
the data from those files.
in this case; making BNSF‟s assurances even more suspect. This Court finds that BNSF‟s
handling of the HXP and HCA event recorder data is sanctionable misconduct.
b. Other Evidentiary Abuses
BNSF prevented Plaintiffs, through their repeated misrepresentations, the destruction and
loss of evidence, and ignorance, from obtaining access to and/or receiving various track, signal,
and work records. This Court finds that the following acts amount to evidentiary abuses
perpetrated by BNSF: (1) the destruction of the “disabled crossing forms;” (2) the concealment
of “railway detector car” evaluations until a time when BNSF determined that it would be to its
advantage to disclose and use them; (3) the failure to admit and disclose BNSF‟s knowledge of
previous signal problems at the Ferry Street Crossing; (4) the failure to disclose and produce
PATS/PARS records until the month before trial; (5) the failure to maintain complete HXP
history logs; (6) the destruction of signal desk communications; and (7) the destruction of signal
system blueprints. These records and documents related to maintenance and work that was done
on the track and equipment related to the Ferry Street Crossing; work that was performed the day
before and on the day of the September 26, 2003 accident.
Many of these lost, misplaced, destroyed, and selectively preserved items of evidence
were critical to this case. Other evidence was disclosed to Plaintiffs very late in the proceedings,
including during the month and days before trial and at trial. BNSF‟s failure to properly handle
critical evidence and timely disclose requested and court-ordered documents and electronic
evidence, not only compromised and undermined the record in these proceedings, but saddled
Plaintiffs with the exorbitant time, labor, and cost expenditures that necessarily followed.
Additionally, due to BNSF‟s delays and untimely disclosures, critical fact witnesses were
deposed more than four years after the accident; leaving their memories compromised by the
passage of time. After finally unearthing some of these documents and learning of the
destruction of others, it was revealed that a work gang had, in fact, worked on the approach track
at the Ferry Street Crossing the day before the accident and that, shortly after the accident, the
signal system had been revised. The shop drawings, which would have confirmed that
reconfiguration, mysteriously disappeared and were never found. Evidence was either destroyed,
lost, and/or produced so late in this case, that relevant witnesses could no longer recall their work
on or events related to the Ferry Street Crossing around the time of the accident.
BNSF has attempted to rationalize the loss or destruction of evidence in this case as
routine “recycling” or destruction occurring in the ordinary course of business. BNSF offered
testimony regarding its standard practice or “recycling” employees‟ personal computers and the
limited tenure for the storage and retention of certain records. This Court is not persuaded.
Under no set of circumstances, is this Court willing to accept BNSF‟s contention that the loss or
destruction of evidence after Plaintiffs sent BNSF their February 3, 2004 evidence preservation
request, was the result of mere coincidence, inadvertence, or part of regular record retention
policies. BNSF knew or should have known that litigation was imminent soon after learning of
the accident. There is no getting around the fact that four young adults were killed in an accident
involving a BNSF locomotive at a railroad crossing. Correspondingly, BNSF should have taken
reasonable steps to preserve evidence related to the Ferry Street Crossing.
This does not mean that potential defendants in every case should necessarily be required
to completely preserve an accident scene. But in cases such as this, involving multiple fatalities,
when there can be little doubt that litigation will follow, defendants clearly have a duty to
preserve evidence that is reasonably related to the accident; especially if a defendant already has
an established evidence handling and preservation protocol in place. In this case, there were
several instances in which BNSF violated its own evidence preservation policies. This includes,
but is not limited to, BNSF‟s failure to keep a write-protected disk of the event recorder data and
maintain current signal system blueprints. It is hard to imagine a defendant railroad legitimately
contending that evidence including work records, recorder history logs, and communications
records are irrelevant and should be destroyed or that witnesses with knowledge regarding work
performed near or on the track involved in the accident are irrelevant. Thus, this Court finds
that BNSF failed, altogether, in its attempts to adequately preserve or produce numerous pieces
of critical evidence in this case.
2. Misrepresentations and False Testimony
This Court has lost count of the total number of misrepresentations BNSF made to
counsel, the parties, and this Court throughout the proceedings. This Court‟s findings regarding
BNSF‟s misrepresentations and false testimony are discussed below.
a. BNSF represented to both this Court and Plaintiffs, during the February 13, 2006
hearing on Plaintiffs‟ motion to compel, that it was not BNSF‟s policy to create a
write-protected disk of HXP and HCA data. It was later revealed that it was,
indeed, BNSF‟s policy to maintain that recorder data on write-protected disks.
b. PATS/PARS records are maintenance records containing information regarding
the time and location of work performed by maintenance crews on the railway.
BNSF, through several different employees, repeatedly represented to both this
Court and Plaintiffs that PATS/PARS records were not relevant. BNSF counsel
characterized Plaintiffs‟ request for PATS/PARS records as “ridiculous.” On
October 8, 2007, during Plaintiffs‟ fifth motion to compel discovery, when it
appeared that the undersigned was going to allow some discovery of the
PATS/PARS records, BNSF quickly shifted gears and offered that access to the
PATS/PARS database should be limited to Track 1 because that was the “only”
track arguably involved in this case. Not only was this misleading, but it was
false. After further discovery, on the eve of trial, Plaintiffs confirmed that
PATS/PARS records referring to Tracks 0, 2, and 9 also included track work and
inspections performed within the Ferry Street Crossing approach circuit; making
these records very relevant. Despite numerous attempts by Plaintiffs, it was not
until December 19, 2007, that BNSF finally revealed that work had been
performed on the tracks within the Ferry Street Crossing‟s approach circuit.
BNSF did not disclose and produce these PATS/PARS records until less than two
months before trial and only after being ordered by this Court to make those
records available. Despite Plaintiffs‟ requests for all PATS/PARS and work order
records, BNSF did not produce a previously undisclosed work order dated
September 25, 2003 (the day before the accident) until less than a month before
trial was scheduled to begin. With that work order in hand, Plaintiffs attempted to
depose BNSF employee Jay Arvidson. Because of BNSF‟s abuses leading to the
late discovery of this evidence, Mr. Arvidson‟s deposition took place less than
three weeks before trial. During his deposition, Mr. Arvidson revealed that he
had been working on the track the day before the accident and at that an eight-foot
section of rail had been replaced within the Ferry Street Crossing circuitry
approach. Once again, it appears that BNSF either misled or misrepresented
what was contained in the PATS/PARs records. BNSF‟s insistence on limiting
discovery to Track 1 appears to have been a diversion or an artificial filter that
only further delayed and interfered with the discovery of relevant evidence,
namely those records which included inspection and track work that was
performed on the subject track during the day before and the day of the accident
c. In his December 19, 2007 deposition, BNSF employee Steven Mendell testified
that Tracks 1 and 2 were the only columns listed in the PATS/PARS database.
During his March 31, 2008 deposition, less than two months before trial, Mr.
Mendell openly admitted that BNSF also keeps PATS/PARS information in data
files or columns for Tracks 0 and 9. Plaintiffs confirmed that Track 9 files
included records showing that work was done near the Ferry Street Crossing on
the day before the accident.
d. BNSF employee Lynn Ross was the claims representative dispatched to the
accident scene and the first to interview the engineer and conductor involved in
the accident. Ms. Ross represented that BNSF had worked diligently and
cooperated with law enforcement in the investigation of the September 26, 2003
Ferry Street Crossing accident. Ms. Ross testified that BNSF provided the
Minnesota State Trooper Accident Investigation team with all relevant evidence
when requested. Discovery revealed quite a different story. BNSF stalled and
failed to provide law enforcement with access to the following: (1) the HXP and
HCA downloads; (2) the event recorder data from the locomotive; (3) access to
the locomotive; and (4) the measurements from the locomotive and the
locomotive‟s snowplow while the state accident reconstruction team was
conducting its investigation. State Trooper Scott Trautner, the lead investigator
on the State Trooper Accident Reconstruction team testified about Ms. Ross‟
refusal to turn over BNSF‟s recorder data. He described one particularly tension-
filled encounter with Ms. Ross, during which he accused her of stonewalling the
investigation by refusing to provide the above-referenced information. Sergeant
Trautner believed that BNSF‟s conduct related to the handling of evidence from
the accident scene investigation, including the event recorder data, warranted a
criminal investigation. In the end, the state troopers concluded their investigation
and submitted their final report without ever having had the benefit of viewing
BNSF‟s recorder data, measuring the BNSF locomotive and snow plow involved
in the accident and inspecting the subject locomotive.
e. Mr. Hildebrant testified, under oath, during his May 9, 2007 deposition that he
only downloaded the HXP and HCA data on two separate occasions: September
26, 2003 and July 17, 2005. Mr. Hildebrant specifically denied that he returned to
the Ferry Street Crossing and/or downloaded the HXP and HCA data on
September 29, 2003. Mr. Hildebrant also attested to these facts in his May 17,
2007 affidavit. It was only through Plaintiffs‟ multiple motions to compel and
requests for this Court‟s intervention that they were able to expose this critical
and blatant misrepresentation by Mr. Hildebrant. It also warrants mention that
BNSF selected Craig Hildebrant to sit at counsel table with BNSF‟s trial counsel
as BNSF‟s corporate designee during the entire six-week trial.
f. Through tenacious discovery efforts, that included multiple motion hearings and
sheer perseverance, Plaintiffs exposed two significant misrepresentations on the
part of BNSF regarding the September 29, 2003 HXP and HCA data download.
First, immediately after Mr. Hildebrant accidentally opened the file containing the
previously undisclosed September 29, 2003 HXP and HCA data download during
a court-ordered inspection, Plaintiffs‟ counsel and expert consultant were escorted
out of the examination room. After twenty minutes, Plaintiffs representatives
were allowed to return and were advised by BNSF that the September 29, 2003
file was not related in any way to the September 26, 2003 accident. Second, not
long thereafter, Mr. Hildebrant submitted an affidavit stating that the September
29, 2003 file was not related to the September 26, 2003 accident. In a subsequent
deposition, however, Mr. Hildebrant admitted that the September 29, 2003 file
was, indeed, related to the September 26, 2003 accident and that he was aware of
that fact at the time of his first deposition and at the time he misclicked on the file
during the November 10, 2006 court-ordered inspection at BNSF‟s Northtown
Facility. Mr. Hildebrant could not explain why he had denied this, under oath, on
at least two previous occasions. Mr. Hildebrant also admitted that he conducted
additional recorder data downloads on October 3, 2003 and October 22, 2003.
Mr. Hildebrant was unable to say whether there were any additional downloads
on his H drive.
3. Witness Abuses and Obstructing Law Enforcement
a. BNSF employee Randy During testified at trial that he felt that he was being
pressured to give testimony favorable to BNSF. Mr. During, who had worked for
the railroad most of his life and took great pride in his job, was clearly
uncomfortable during his testimony.
b. Due to the long lapse in time, numerous witnesses were unable to recall pertinent
information concerning events surrounding the September 26, 2003 accident. If
BNSF had responsibly performed its discovery and evidence preservation duties,
these witnesses could have been found much earlier in the litigation process and
memories and recall most likely would not have been so severely compromised.
c. Shortly after the September 29, 2003 “misclick” incident, Plaintiffs were
scheduled to depose Aaron Ratledge, BNSF‟s corporate designee for locomotive
event recorder data. BNSF specifically instructed Mr. Ratledge not to bring his
laptop computer to his deposition. Mr. Ratledge testified that he had used his
computer to view the data in preparation for his deposition and could not answer
many of Plaintiffs‟ questions without his computer.
d. On several occasions, the Minnesota State Patrol requested that BNSF produce
downloaded data from the HXP and HCA event recorders. BNSF never did.
BNSF also refused to provide the Minnesota State Patrol with the locomotive
event recorder data. BNSF never made the locomotive which was involved in the
accident available for inspection and measurement despite the Minnesota State
Patrol‟s request for such access. Finally, BNSF also failed to provide the
Minnesota State Patrol with the measurements for the locomotive and the
This Court is satisfied that the record, which has developed over a period of six years,
overwhelmingly supports a finding that BNSF did, in fact, engage in conduct and decision
making that compromised critical evidence, interfered with witnesses, impeded the investigation
by law enforcement, and misled and/or misrepresented a number of facts to Plaintiffs and this
Court. BNSF has attempted to explain away this misconduct in piecemeal fashion by attributing
much to inadvertence, coincidence, honest mistake, and/or legitimate business practices. This
Court is simply not persuaded. Taken alone, some of BNSF‟s abuses might not be sanctionable,
and indeed might have been understandable given the complexities of this case. But the breadth
of BNSF‟s misconduct in this case is staggering; beginning within minutes of the accident, up to
and through the trial. Plaintiffs have established that BNSF‟s misconduct did indeed the strain
limits of the civil justice system and this Court is on firm ground to impose significant sanctions.
II. SANCTIONS LAW
The power of courts to impose sanctions in Minnesota is derived from two basic sources:
(1) rules and statutes; and (2) the inherent power of the court. Often, these two sources are
indistinct; meaning that in many instances in which courts rely on rules and statutes they also
invoke the inherent power of the court as a legitimate basis for sanctioning misconduct.
Obviously, there are cases where courts rely strictly on rules or statutes to sanction misconduct.
Contrary to BNSF‟s assertions, however, there are also cases in which the inherent power of the
court has been invoked, standing alone, to sanction parties. See Patton v. Newmar, Corp., 538
N.W.2d 116, 118−19 (Minn. 1995) (“Patton II”). Determining whether to impose sanctions and
if, indeed, there is a sufficient factual basis to support such a decision, are questions of fact for
the Court and, as such, are subject to an abuse of discretion standard. Dillon v. Nissan Motor,
Co., Ltd., 986 F.2d 263, 267 (8th Cir. 1993). This Court will briefly address Minnesota‟s rules
and statutes relating to sanctions and follow with a comprehensive analysis of the court‟s
inherent power to levy sanctions.
1. Rules and Statutes
There is a panoply of sanctions-related rules and statutes that apply to litigants in
Minnesota. Specifically, Minn. Stat. § 549.211 and Minnesota Rules of Civil Procedure 11.03,
26.07, and 37.01 grant courts the authority to sanction parties and/or counsel. These provisions,
however, address distinct forms of misconduct, leaving the opportunity for some types of
misconduct to go unsanctioned. Rule 11.03, for example, applies only to signed documents and
pleadings. Rule 37.01 applies only to unresponsive or incomplete discovery responses.
Further, these rules typically require a twenty-one (21) day “safe harbor” period. The
nature of the misconduct in this case, which included, inter alia, destruction, mishandling, and
tampering with critical evidence, misrepresentations to this Court and opposing counsel, and
sundry other problems with witnesses, does not fit neatly into the existing sanctions framework
provided by the rules of procedure and relevant statutes. In many instances, Plaintiffs did not
become aware of BNSF‟s discovery abuses in time for the rules and statutes to effectively apply
to them and afford any meaningful remedy. In fact, abuses continued to be discovered in the
days leading up to and through trial. Obviously, an application of these rules to conduct that was
still being unearthed at the time of trial would have no effect in changing BNSF‟s conduct or
curing any prejudice to Plaintiffs. Also, as noted above, the rules and statutes do not readily
address all forms of misconduct. Accordingly, this Court turns to its inherent power to
determine the appropriateness of sanctions for BNSF‟s misconduct.
2. Inherent Power of the Court
The thrust of Plaintiffs‟ sanction request relies on the inherent power of the court to
sanction misconduct; claiming that the courts‟ inherent power allows for open-ended sanctions.
BNSF contends that the inherent power of the court is non-existent when it is unaccompanied by
the power of a rule or statute (i.e., Minn. §Stat. 549.11 or Minn. R. Civ. P. 11.03). This Court
has given serious consideration to the parties‟ divergent positions regarding the Court‟s inherent
power to impose sanctions for misconduct and is more persuaded by the position advanced by
The inherent power of Minnesota‟s courts is considerable and exists to provide courts
with the means to ensure the efficient, just, and fair disposition of matters heard in court. The
Minnesota Supreme Court has stated that the courts‟ inherent power exists to fulfill “the practical
necessity of ensuring the free and full exercise of the court‟s vital function-the disposition of
individual cases to deliver remedies for wrongs and justice freely and without purchase;
completely and without denial; promptly and without delay, conformable to the laws.” Patton II,
538 N.W.2d at 118−19 (quoting Clerk of Court’s Compensation for Lyon County v. Lyon County
Commissioners, 308 Minn. 172, 177, 241 N.W.2d 781, 784 (1976); County of Ramsey v. Stevens,
283 N.W.2d 918, 925 (Minn. 1979)). Thus, it is clear that Minnesota‟s courts have inherent
power to control the vital functions of justice and integrity for those matters coming before them
with the use of sanctions when warranted; a call that is up to the court to make. Sanctions are
not appropriate, however, merely because a party does not prevail on the merits. Radloff v. First
Am. Nat’l Bank of St. Cloud, N.A., 470 N.W.2d 154 (Minn. Ct. App. 1991). There being no
question that this Court has the inherent power to sanction misconduct, the undersigned will next
consider the standards for determining appropriate sanctions.
In Patton v. Newmar, both the Minnesota Court of Appeals and Supreme Court
announced that trial courts could invoke their inherent power to impose sanctions for
misconduct. 538 N.W.2d at 119; Patton v. Newmar, Corp., 520 N.W.2d 4, 7 (Minn. Ct. App.
1994) (“Patton I”) rev’d on other grounds, 538 N.W.2d 116 (1995). The Patton II Court held
that the courts‟ inherent power gave trial courts discretion to not only sanction the intentional
spoliation of evidence, but negligent spoliation as well. Id. This inherent power may be invoked
within the trial court‟s discretion. Id.
Patton and its progeny rely heavily on cases discussing the inherent power of federal
courts to impose sanctions. Minnesota courts often rely on federal standards when announcing
standards under its rules of civil procedure. See Id. (announcing reliance on the standards for
determining sanctions that were laid out in Dillon, 986 F.2d at 263 and Marrocco v. General
Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992)). See also Gibson v. Coldwell Banker Burnett,
659 N.W.2d 782 (Minn. Ct. App. 2003) (holding that federal "[c]ases interpreting Fed.R.Civ.P.
11, though not binding on this court, provide valuable guidelines for understanding the purpose
and application of Minn. R. Civ. P. 11."). As such, crafting the appropriate sanctions for BNSF‟s
misconduct necessarily requires a review of those federal cases that are intertwined with
Minnesota‟s sanctions laws.
In Patton I, the Minnesota Court of Appeals developed the standard for determining
sanctions under the courts‟ inherent power. In doing so, the Patton I Court relied on principles
well-established in federal cases in which the courts invoked their inherent powers. See Dillon,
986 F.2d at 267−68; Capellupo v. FMC Corp., 126 F.R.D. 545, 550 (D. Minn. 1989). While the
Patton I Court addressed the inherent power of the court to sanction in spoliation cases, it also
discussed and elucidated a standard for imposing sanctions based on the courts‟ inherent power
for all misconduct. Patton I, 520 N.W.2d at 8. Specifically, the Patton I Court promulgated a
six-factor test for determining the appropriateness and severity of possible sanctions. These
(1) the degree of fault or willfulness of the party who altered or destroyed the
(2) the degree of prejudice suffered by the opposing party;
(3) whether there is a lesser sanction that will avoid substantial unfairness to the
opposing party and, where the offending party is seriously at fault, will serve to
deter such conduct by others in the future;
(4) whether any evidence has been irreparably lost;
(5) the policy favoring adjudication on the merits; and
(6) whether sanctions unfairly operate to penalize a party for the misconduct of his or
Id. While the Patton II Court limited its discussion to sanctions for spoliation, it also relied on
the same federal cases cited in Patton I and agreed that Minnesota courts do, indeed, possess the
inherent power to sanction. Patton II, 538 N.W.2d at 118−19. Moreover, the Patton II Court
expressly stated that it was accepting and applying the federal standards upon which Patton I
relied. Id. at 119. As such, the Patton I six-factor framework is instructive when considering
whether to impose sanctions not only for spoliation, but for broader abuses as well.9 This Court
has applied the Patton I six-factor test to BNSF‟s misconduct that is the subject of this motion
and crafted her sanctions, accordingly.
a. Bad Faith10
Bad faith, contrary to BNSF‟s contentions, is not a dispositive consideration for imposing
sanctions in Minnesota. Patton II, 538 N.W.2d at 118−19 (holding that the negligent destruction
of evidence is sanctionable under the courts‟ inherent powers). In addition to Patton II’s holding
that a finding of bad faith is not required to sanction for spoliation, Dillon (from which the
It should be noted that while Patton I was overturned and remanded to the district court, it was remanded on a
separate issue and the six-factor test was left untouched. In fact, the Patton II Court overturned the portion of the
Patton I decision that found that the district court‟s sanctions were too severe. The Patton II Court‟s decision to
overturn that portion of the Patton I decision actually reaffirms the notion that district courts have a particularly
advantageous viewpoint for determining the appropriateness and severity of sanctions when invoking their inherent
Bad faith, n. 1. Dishonesty of belief or purpose. “A complete catalogue of types of bad faith is impossible, but the
following types are among those which have been recognized in judicial decisions: evasion of the spirit of the
bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify
terms, and interference with or failure to cooperate in the other party's performance.” Restatement (Second) of
Contracts § 205 cmt. d (1979). Black‟s Law Dictionary (8th Ed. 2006).
Patton II Court adopted its sanctioning standards) and Patton I both used a sanctioning
framework in which bad faith is considered, among other factors, when deciding the severity of a
particular sanction; not as a dispositive consideration of whether to impose a sanction in the first
place. Bad faith is only one factor to consider when deciding the merits of a sanction claim in
While bad faith is not determinative on the issue of sanctions, it is, nonetheless, relevant
when determining the type and severity of a particular sanction. Although BNSF‟s history of
misconduct in this case borders on chronic and systemic, this Court is not prepared to ascribe a
wholesale malevolent intent or bad faith on the part of BNSF. Many of Plaintiffs‟ allegations
amount to nothing more than legitimate discovery disputes. Likewise, BNSF engaged in some
conduct that, while sanctionable, does not warrant the severity of sanctions typically imposed
after a finding of bad faith. That being said, this Court is prepared to find that that the majority
of BNSF‟s misconduct was perpetrated in bad faith.
BNSF engaged in a pattern of misconduct that included: (1) the loss, destruction, and/or
fabrication of electronic and physical records; (2) the failure to follow its own policies for
accident investigation and coordination with law enforcement; (3) the obstruction of and
interference with Plaintiffs‟ investigation; (4) the interference with Plaintiffs‟ access to witnesses
and the accident site; (5) the destruction or production of erroneous circuitry drawings; (6)
knowingly advancing lies, misleading facts, and/or misrepresentations by BNSF
employees/agents in depositions, sworn affidavits, and/or trial testimony. This Court finds that
this misconduct was perpetrated in bad faith.
The necessity of a bad-faith finding before awarding attorneys‟ fees is discussed in the analysis section of this
BNSF has attempted to explain away each instance of misconduct as either an innocent
mistake or mere coincidence. This Court finds nothing serendipitous or coincidental about the
majority of BNSF‟s evidentiary abuses, many of which took place after Plaintiffs‟ February 3,
2004 evidence preservation letter was sent to BNSF. BNSF has admitted that it “bungled12
evidence,” engaged in “sloppy evidentiary maintenance and preservation,” and that “there has
been [a] clear and convincing showing of negligence.” (April 21, 2008 Tr., BNSF Attorney
Thornton at 25, 40).
BNSF has also attempted to consign much of its misconduct to one BNSF employee,
Craig Hildebrant, whom counsel described as a “rogue” employee. This Court finds this last-
ditch characterization on the part of BNSF‟s new counsel to be utterly preposterous. At no time
in these proceedings did BNSF ever suggest that Mr. Hildebrant had acted outside of the scope
of his employment at BNSF. It is undisputed that Mr. Hildebrant was acting within the scope of
his employment at all times material to this litigation. While Mr. Hildebrant‟s actions were
egregious, they are also attributable to BNSF. Mr. Hildebrant, a long-time BNSF employee until
his retirement in 2007, was involved at all stages of litigation and all of his activities were
advanced on behalf of BNSF.
Up until the April, 21, 2009 sanctions hearing, during which BNSF‟s new counsel first
raised the suggestion that Mr. Hildebrant was a rogue employee whose conduct had not been
authorized by BNSF, BNSF had always characterized Mr. Hildebrant as a loyal and trustworthy
employee. Of all its employees, from the front line to the upper echelons of management, BNSF
selected Mr. Hildebrant to sit at counsel table as its corporate designee during the entire six-week
trial; hardly the type of responsibility an employer would assign to a rogue employee. In their
Presumably, BNSF substituted the word bungle as charming alternative to the phrase negligent destruction and/or
misplacement of critical evidence.
memorandum opposing sanctions, BNSF champions the steps Mr. Hildebrant took to
authenticate and carefully download the recorder data. It was not until the April 21, 2009
sanctions hearing that BNSF changed its view of Mr. Hildrebrandt and attempted to parse his
misconduct from that of BNSF. This novel and untimely theory which appears to be born out of
convenience for BNSF, if anything, is not persuasive and borders on the absurd. Because Mr.
Hildrebrandt was a trusted BNSF employee and all of his activities were within the scope of his
employment, any sanctionable conduct on his part is attributable to BNSF. Thus, this Court
finds that BNSF‟s misconduct was perpetrated in bad faith and the severity of this Court‟s
sanctions shall reflect that finding.
As previously mentioned, not all of BNSF‟s misconduct was the product of bad faith.
BNSF‟s misconduct, even if it were the product of negligence, coincidence, or mistake still
resulted in Plaintiffs having to file multiple motions to compel discovery and incur exorbitant
attendant expenses. Plaintiffs were also faced with the daunting challenge of conducting
discovery on the eve and during trial. As noted above, negligent misconduct that results in a
detriment to the opposing party is sanctionable. See Patton II, 538 N.W.2d at 119; Foust v.
McFarland, 698 N.W.2d 24, 31 (Minn. Ct. App. 2005).
BNSF is correct in it assertion that prejudice is a key factor in any sanctions
determination. This Court is unwilling, however, to accept BNSF‟s further conclusions that: (1)
the sole consideration for this Court, when determining the appropriateness and severity of a
particular sanction, is the prejudice, if any, experienced by Plaintiffs; and (2) prejudice should be
narrowly defined; limited to the evidentiary advantage of the offending party.
1. Role of Prejudice
BNSF contends that prejudice is the only principle to consider when determining if and
how an offending party should be sanctioned. Prejudice, however, while vital, is not the sole
consideration for courts invoking their inherent powers. As previously metioned, there are six
factors to consider when determining the appropriateness of sanctions; one of them being
prejudice to the non-offending party.13 Beyond these six factors, coursing through Minnesota‟s
sanctions laws, undoubtedly is the over-arching tenet that courts have the free and full exercise to
protect the integrity and civility of the law and “to deliver for wrongs and justice.” Patton II,
520 N.W.2d 118−19 (citing Clerk of Court’s Compensation for Lyon County, 308 Minn. at 177).
The United States Supreme Court has incorporated this philosophy in its sanctions cases. In
Chambers v. Nasco, upon which Minnesota courts have relied both directly14 and indirectly, the
U.S. Supreme Court offers this instructive analysis of the courts‟ inherent power:
It has long been understood that „[c]ertain implied powers must necessarily result to our
Courts of justice from the nature of their institution,‟ powers „which cannot be dispensed
with in a Court, because they are necessary to the exercise of all others.‟ For this reason,
„Courts of justice are universally acknowledged to be vested, by their very creation, with
power to impose silence, respect, and decorum, in their presence, and submission to their
lawful mandates.‟ These powers are „governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.‟ (citations omitted)
501 U.S. 32 at 43. While Chambers concerned federal courts, Minnesota courts often rely upon
and mirror federal standards. See Gibson v. Coldwell Banker Burnett, 659 N.W.2d 782 (Minn.
Ct. App. 2003). In some cases, Minnesota courts actually have more power to sanction based
upon misconduct, as is the case in negligent spoliation cases. See Patton II, 538 N.W.2d at 119
(Minnesota recognizes the power to sanction for negligent spoliation, which is not allowable in
The other five factors are discussed separately.
Mahoney & Emerson v. Private Bank of Minnesota, 2009 WL 1852789 (Minn. Ct. App. 2009) (stating that “[t]he
United States Supreme Court has addressed this issue, and has held that such awards are available where a party acts
in "bad faith, vexatiously, wantonly, or for oppressive reasons.” Chambers v. NASCO, Inc., 501 U.S. 32, 45-46
(1991) . . . We conclude that the federal rule is appropriately followed in this proceeding”).
federal courts). Other cases have discussed intention or bad faith as a “factor” in determining
sanctions. This is further support for the contention that factors other than prejudice should be
considered. See Foust, 698 N.W.2d at 33. Thus, Minnesota courts not only have the power to
sanction when the non-offending party has been prejudiced, but also may consider other factors,
including the driving purpose behind sanctions law, that of preserving the vital functions and
integrity of the court systems. Accordingly, while this Court recognizes that considering
prejudice is vital to any sanctions determination, this Court also must consider BNSF‟s
misconduct within the context of the five other factors set forth in Patton I, as well as, the need
to preserve the justice and integrity of the court system.
2. Definition of Prejudice and Application to the Present Case
BNSF has based much of its opposition to Plaintiffs‟ sanctions motion on an erroneous
definition of prejudice. BNSF contends that prejudice should be narrowly defined as the
evidentiary advantage that the offending party gains through its misconduct. Incredulously,
BNSF contends that because Plaintiffs received a favorable verdict, all of BNSF‟s misconduct
should somehow be immune from possible sanctions. Again, this Court rejects BNSF‟s limited
and self-serving definition of prejudice and its corresponding conclusion.
BNSF relies primarily on Foust v. McFarland15 to support its contention that an
evidentiary advantage is the sole consideration when determining whether to impose sanctions.
BNSF also relies upon Foss v. Kincade to support its definition of prejudice as an evidentiary advantage. 766
N.W.2d 317 (Minn. 2009). Foss was a spoliation case in which a bookcase toppled and injured an infant who had
been climbing on its shelves. The bookcase was subsequently destroyed. The bookcase‟s condition, however, was
only relevant to the issue of notice and the defendants admitted that they knew that the bookcase was capable of
tipping over. In other words, the evidence destroyed in Foss was completely irrelevant to the case because
defendants had already admitted to the only point to which the evidence could have been relevant. Simply put, its
destruction did not harm or affect the opposing in any way; not an evidentiary advantage, not in additional time,
costs, or resources, nor in any other conceivable harm. Thus, in terms of its sanction holding, Foss stands for the
unremarkable position that a district court does not abuse its discretion for finding that a party is not prejudiced
when the destroyed evidence is no longer relevant because the offending party has fully admitted its worth,
completely, in the non-offending party‟s favor.
In Foust, the appellate court observed that “[s]poliation sanctions are typically imposed where
one party gains an evidentiary advantage over the opposing party by failing to preserve
evidence.” 698 N.W.2d at 30. Foust is readily distinguishable from and has limited application
in the instant case for two reasons.
First, Foust involved the spoliation of evidence related to the issue of damages. Foust’s
ruling is limited to situations involving spoliation. The present case, however, involves not only
spoliation but other abuses as well, including misrepresentations to Plaintiffs and this Court,
discovery abuses, witness abuses, and a persistent pattern of obstruction to the civil-justice
system. Because of the nature of this case and Foust’s limitation, this Court must necessarily
look beyond any evidentiary advantage that BNSF might have enjoyed.
Second, BNSF‟s contention that evidentiary advantage is the sole consideration in
determining whether to impose sanctions, even in cases limited to spoliation, is flawed. Again,
BNSF relies on the phrase “[s]poliation sanctions are typically imposed where one party gains an
evidentiary advantage over the opposing party by failing to preserve evidence. Id. (emphasis
added). This Court has already found that BNSF engaged in a persistent pattern of abuses
beyond spoliation. The sheer magnitude of BNSF‟s discovery and evidentiary abuses renders
this case anything but “typical.”
It defies logic and any notion of common sense to presuppose that the only form of
prejudice encountered by Plaintiffs was an evidentiary advantage to BNSF. BNSF‟s misconduct
placed Plaintiffs at a tremendous disadvantage, forcing them to expend vast amounts of time and
resources in an attempt to adequately prosecute their case. Plaintiffs have submitted detailed
affidavits to this Court outlining the amount of time and expense that can be directly attributed to
BNSF‟s misconduct. These amounts include thousands of hours of additional work and over
one-hundred thousand dollars of additional expense. This is prejudice. These additional hours
and costs created an almost insurmountable fiscal and resource roadblock which Plaintiffs were
forced to overcome. Without the benefit of the many skilled attorneys and expert consultants
retained by Plaintiffs, the likelihood of their success on the merits was in jeopardy. Additionally,
instead of focusing on relevant case theories and evidence, Plaintiffs were forced to focus on
unearthing BNSF‟s abuses and hire costly experts to speculate on what the missing or destroyed
evidence might have established; all through the fog created by BNSF‟s abuses. Ultimately, due
to BNSF‟s lack of candor to both Plaintiffs and this Court, these proceedings were delayed for
over one year. To say that Plaintiffs were not prejudiced because BNSF did not gain an
evidentiary advantage is not only illogical and contrary to Minnesota law, but laughable.
BNSF‟s legal grounds for limiting the definition of prejudice to that of an evidentiary
advantage is also misguided. Beyond using the word “typically” to preface its motivation for
upholding a district court‟s imposition of sanctions, the Foust Court also stated that “[p]rejudice
is determined by considering the nature of the item lost in the context of the claims asserted and
the potential for correcting the prejudice.” Id. at 30 (citing Patton II, 538 N.W.2d at 119). Thus,
under Foust, in spoliation cases, this Court is required look contextually at the evidence
destroyed, determine how it prejudiced Plaintiffs, and determine how to correct that prejudice.
Looking past evidentiary advantage is not foreign to courts invoking their inherent
power. For example, in Capellupo v. FMC Corp., upon which the Patton I Court relied when
developing its sanction standard, the court discussed the economic and time burdens created by
the offending party as an appropriate basis for imposing sanctions. 126 F.R.D. at 550. The
Capellupo Court found that “[p]arties liable for document destruction have been assessed their
opponents' fees and costs for investigating, researching, preparing, and arguing evidentiary
motions and motions for sanctions.” In Wachtel v. Health Net, Inc., a jurisdiction that has
adopted a six-factor test similar to the one used in Patton I, the court found prejudice occurred
when the offending party caused needless delay in the proceedings and forced its opponent to
prepare for motions and trial with inadequate information. 239 F.R.D. 81, 101−02 (D. N.J.
2006) (citing Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). While
these are federal cases, they are, nonetheless, instructive here because they involve the same
types of misconduct as in the instant case and incorporate the same legal principles relied upon
by Minnesota courts. Further, the theory of imposing a sanction of attorneys‟ fees, which BNSF
admits is the most common and appropriate type of sanction, does not turn on what evidentiary
advantage the offending party may have enjoyed. Instead, it centers on the time, expense, and
delay that the non-offending encountered due to the misconduct. In short, prejudice is not
confined to an evidentiary advantage. Rather, the courts must look at all of the misconduct and
the resulting harm to the non-offending party.
BNSF also contends that Plaintiffs could not have been prejudiced because of the large
verdict returned in their favor. Again, this proposition is based on BNSF‟s contention that an
evidentiary advantage is the only conceivable form of prejudice. This Court has already rejected
BNSF‟s narrow definition of prejudice. Other courts invoking the inherent power of the court to
sanction have done so when the non-offending party prevailed on the merits. See Dillon, 986
F.2d at 266 (jury returned a favorable verdict to non-offending party); Buscher v. Montag Dev.,
Inc., 770 N.W.2d 199, 205 (Minn. Ct. App. 2009) (sanctions imposed after non-offending
prevailed on its summary judgment motion). Essentially, BNSF‟s contention is that parties
engaging in misconduct, no matter the severity or intention, are immune from sanctions if they
lose at trial. BNSF‟s contention hinges on this Court accepting two principles: (1) an extremely
narrow definition of prejudice (evidentiary advantage); and (2) using prejudice as the sole factor
for imposing sanctions. This Court has already rejected both of these principles and BNSF‟s
corresponding position and no further discussion on this point is necessary.
BNSF also contends that the only party that was prejudiced by the evidence it destroyed,
misplaced, or mishandled was BNSF itself. BNSF presses this argument further by claiming that
its evidentiary practices opened the door for Plaintiffs‟ triumph at trial and that had all of the
evidence been properly preserved not only would BNSF have won, but there might not have
been a lawsuit at all. Boiled down, BNSF is asking this Court to make a factual finding that the
lost or destroyed evidence supported BNSF and that, because Plaintiffs prevailed at trial, BNSF‟s
other misconduct should not now be sanctioned. To do so would overlook BNSF‟s extensive
history of misconduct that includes the myriad discovery and evidentiary abuses that have
plagued this case, almost from its inception. It makes no sense to accept the word of a party that
has destroyed and lost evidence when they claim that the evidence happened to only favor the
offending party. BNSF‟s misconduct involved much more than a possible evidentiary advantage
and as such is sanctionable. Thus, this Court finds that, absent BNSF‟s misconduct in this case,
Plaintiffs‟ counsel would have been able to prepare and present their case under more civil, sane,
and fiscally appropriate conditions. BNSF‟s actions, however, erected a formidable obstacle to
that pursuit and prejudiced Plaintiffs in the form of staggering costs and time demands.
c. Least Restrictive Sanction and Deterrence
The parties agree that courts must impose the least restrictive sanction possible under the
circumstances. This limitation on the courts‟ sanctioning power is well-established in both
Minnesota state and federal cases. See Patton I, 520 N.W.2d at 8. The parties, however, differ
in their interpretation of what it means to be the least restrictive. BNSF contends that this Court
must limit any sanction to what is necessary to cure the prejudice to Plaintiffs. Again, BNSF
would define prejudice as the evidentiary advantage, if any, that BNSF enjoyed because of its
misconduct. Plaintiffs, on the other hand, contend that this Court should severely punish BNSF
in order to deter future misconduct. Plaintiffs argue that, in order to accomplish this end, this
Court must sanction BNSF with monetary sanctions ranging from $22,000,000.00 to
$45,000,000.00; a request which this Court perceives as an attempt by Plaintiffs to resurrect their
request for punitive damages which this Court has already ruled on and denied.
Under Patton I’s six-factor test, the courts‟ inherent power to impose sanctions is
tempered by the duty to impose the least restrictive sanction that “will serve to deter such
conduct by others in the future.” Patton I, 520 N.W.2d at 8. Capellupo, upon which Minnesota
courts have relied, also discusses deterrence as a factor that courts should consider when
invoking their inherent power. 126 F.R.D. at 532−33. Under Minnesota‟s sanctions laws and
rules, such as Minn. Stat. § 549.21 and Rule 11, the purpose of sanctions is “to deter baseless
litigation, frivolous claims, harassment and other „unnecessary delay or needless increase in the
cost of litigation.‟” See Spicer, Watson & Carp v. Minnesota Lawyers Mut. Ins. Co., 502
N.W.2d 400, 405 (Minn. Ct. App. 1993) (citing Minn.Stat. § 549.21, subd. 2); Uselman v.
Uselman, 464 N.W.2d.2d 130, 142 (Minn. 1990). Thus, under Minnesota law, deterrence of
misconduct is a factor to be considered by the court when imposing sanctions.
Deterrence and prejudice should be considered when determining the least restrictive
sanction that may be imposed, but factors such as punishment or a punitive effect have no place
in a sanctions determination. While Capellupo applied an attorneys‟ fees “multiplier” to arrive
at an appropriate sanction, the notion of sanctioning misconduct for intentional spoliation on a
punitive basis was roundly rejected in Minnesota in Foust v. McFarland. 698 N.W.2d at 30−31.
Admittedly, the Foust Court made its determination based only on the possible difference
between intentional and unintentional spoliation; not the broad range of abuses found in this
case. Id. Additionally, the spoliation alleged in Foust affected only the element of possible
damages; not liability as in this case. Id. at 30. This Court will follow the Patton I six-factor test
when addressing BNSF‟s misconduct.
This Court has already denied Plaintiffs‟ request for punitive damages and views
Plaintiffs‟ requests for a sanctions award ranging from $22,000,000.00 to $45,000,000.00 to be
nothing more than an attempt to resurrect that previously denied request. Not only is this Court
reluctant to consider this request, but under Minnesota law it is, in fact, barred from doing so.
Accordingly, Plaintiffs‟ request for a sanctions award based on doubling the verdict or the
application of an attorneys‟ fees multiplier is DENIED.
d. Irreparable Loss
There is no doubt that evidence in this case has been irreparably lost. This factor is of
less importance for this Court‟s consideration because the case has already been decided on the
merits and the imposition of sanctions pertaining to the importance of the lost evidence, such as
default judgment or discovery sanctions, has already been granted or denied. The lost evidence
does have significance, however, when considering the highly critical nature of the lost,
destroyed, and/or fabricated evidence.
Both parties agree that, had BNSF properly handled and disclosed evidence, not only
would this trial have been much shorter and less costly, but that it is entirely conceivable that this
trial would not have gone forward. BNSF has argued that it was the only party prejudiced by its
evidentiary abuses. This Court, however, is not persuaded by BNSF‟s convenient argument that
the evidence that it destroyed or mishandled would have vindicated BNSF. Common sense
dictates that a party should not be allowed to destroy and mishandle evidence, whether
intentionally or unintentionally, and then argue to the court that it should be immune from
sanctions because the abuse prejudiced only the offending party. This is particularly true in
cases, such as this case, where the evidence was of critical import, the potential benefit of that
evidence to either party was indiscernible, and the evidence is now irreparably lost.
This factor is not applicable to this case because it has been decided on its merits.
f. Unfair Penalty
The sixth factor to consider under Patton I is “whether sanctions unfairly operate to
penalize a party for the misconduct of his or her attorney.” BNSF, after retaining talented and
well-seasoned counsel for the trial proceedings, decided to employ the services of a different
firm for the post-trial proceedings. New counsel for BNSF is exceptionally qualified and has
ably handled most of the post-trial work in this case. During the April 21, 2009 sanctions
hearing, BNSF‟s new counsel opined that BNSF‟s trial counsel was “out-lawyered and that the
case was “poorly tried.” (April 21, 2009 Tr., BNSF Attorney Thornton at 74) BNSF has also
attempted to elucidate a number of mistakes that its own trial counsel may have made. BNSF
may be entitled to the counsel of its choice, but it is not entitled to retry this case. During the
post-trial hearings, this Court reminded counsel that BNSF was not entitled to a “do over” simply
because it decided to retain new counsel after the trial. This Court also informed counsel that she
considered it a privilege to witness some of the finest lawyering she had ever seen during her
entire legal career. This Court admonished counsel for his disparaging remarks about BNSF‟s
trial counsel. Further, this Court finds that misrepresentations made to this Court by BNSF‟s
trial counsel were likely due to the poor handling and destruction of evidence on the part of
BNSF‟s employees under the direction of other BNSF employees and/or management.16
BNSF has argued that it never received proper notice that Plaintiffs intended to seek an
award of sanctions against BNSF. Presumably, BNSF is proposing that it should have received
notice consistent with the twenty-one (21) day safe harbor provisions outlined in Minn. R. Civ.
P. 11 and Minn. Stat. § 549.211. Plaintiffs did not bring their sanctions motion pursuant to those
rules. Indeed, those rules are not applicable because of the breadth, nature, and timing of
BNSF‟s ongoing misconduct. The record is clear that BNSF knew that Plaintiffs would be
seeking sanctions. Plaintiffs first noticed their sanctions motion in February 2008, but due to
BNSF‟s continued abuses and Plaintiffs‟ ongoing difficulties in unearthing those abuses, the
parties agreed that the sanctions motion would be heard after the trial.17 What followed involved
hundreds of pages of written memoranda, protracted settlement discussions that included
amounts for any possible sanctions award, mediations, and the numerous attempts to reschedule
the sanctions motion. The record before this Court does not support BNSF‟s contention that it
did not have notice. Further, given the nature and impact of BNSF‟s misconduct, a twenty-one
(21) day safe harbor provision was not only not practicable, but not possible.
For purposes of this sanctions motion, the conduct of BNSF‟s trial counsel is not in the crucible. Plaintiffs have
elected to pursue other available remedies to address their allegations regarding any misconduct on the part of
BNSF‟s trial counsel. Accordingly, this Court will not address or make any findings regarding the possible
sanctionable misconduct of BN SF‟s trial counsel.
The matter of scheduling the hearing on Plaintiffs‟ sanction motion was discussed during several conference calls
with counsel and this Court. After continuing the proposed hearing date a number of times, counsel agreed that the
most prudent and cost-effective course to follow would be to combine the motions for a two-day hearing. Counsel
agreed that allegations regarding post-trial misconduct would not be included in Plaintiffs‟ costs and sanctions
After outlining the appropriate legal framework for sanctioning BNSF‟s misconduct, this
Court now addresses Plaintiffs‟ requests within the context of that framework.
Plaintiffs were forced to incur a number of costs that would not have been necessary had
BNSF acted appropriately under the circumstances. BNSF contends that the impostion of any
monetary sanction requires that it be directly linked to any increased cost attributable to the
misconduct of the offending party. While this Court disagrees with that blanket objection, even
this narrow standard advanced by BNSF would support an award of the costs requested in this
case. As such, the Court finds that Plaintiffs are entitled to be reimbursed for all expenditures
attributable to BNSF‟s misconduct. Accordingly, BNSF will be responsible for reimbursing
Plaintiffs for their costs associated with investigating, researching, preparing, arguing, and
presenting at all of the proceedings arising from or further complicated by BNSF‟s misconduct.
This amount includes travel and lodging expenses that were denied as non-taxable in
Plaintiffs‟ costs motion. Specifically, this Court denied Plaintiffs‟ request for these items
because the purpose of costs motion is not to subsidize the cost of business for the prevailing
party‟s attorney. Because of the differing legal standards, however, this request requires a
different analysis in the context of Plaintiffs‟ sanctions motion. Instead, this Court will consider
whether Plaintiffs were harmed or incurred additional costs and expenses because of BNSF‟s
misconduct. Plaintiffs clearly did. In the context of this particular request, Plaintiffs were
required to schedule and attend several out-of-state depositions and incurred significant lodging
and travel expenses. These expenses can be directly linked to BNSF‟s misconduct.
Accordingly, this Court awards Plaintiffs $16,647.69 for expenses incurred due to BNSF‟s
Plaintiffs also waived a number of expenses for purposes of their costs hearing but
reserved those requests for this Court‟s consideration, in their sanctions motion. These expenses
include: expert witness fees paid to Myron Lofgren, Scott Trautner, and Robert Halstead; costs
for the Ferry Street Crossing inspection; and certain transcription costs. These costs were
incurred because of the obstructions, evidentiary confusion, and mistrust created by BNSF‟s
misconduct. These costs certainly could have been included in Plaintiffs‟ costs motion but
because they were incurred as a result of BNSF‟s misconduct and the deep-seeded mistrust that
accompanied it, these costs are properly before this Court in Plaintiffs‟ sanctions motion.
Plaintiffs also submitted affidavits linking the necessity of these costs to BNSF‟s misconduct.
This Court finds that these costs were directly attributable to BNSF‟s misconduct and awards
Plaintiffs $90,111.21 for costs incurred as result of BNSF‟s misconduct.
2. Attorneys’ Fees
Plaintiffs seek to recover attorneys‟ fees for time that can be attributed to BNSF‟s
misconduct. BNSF‟s persistent pattern of delay, selective preservation of evidence, destruction
of evidence, evasive responses to Plaintiffs' discovery requests, and lack of candor resulted in
crushing prejudice to Plaintiffs in the form of forgetful witnesses and extraordinary expenditures
of time, effort, and money. Plaintiffs have estimated the amount of time they expended that can
be directly attributed to BNSF‟s misconduct. BNSF contends that Plaintiffs‟ request should be
denied for two reasons: (1) an award of attorneys‟ fees requires a finding of bad faith by the
Court, which is not present in this case; and (2) Plaintiffs‟ fees request is premised on estimates,
not well-kept records and, as such, do not provide the Court with the necessary factual basis for
determining attorneys‟ fees. This Court will now address BNSF‟s arguments.
a. Bad Faith
In Minnesota, a finding of bad faith is not typically required before sanctions may be
imposed; instead, bad faith is one factor to be considered when determining the severity of the
sanction. The parties agree that a finding of bad faith conduct is a condition precedent to an
award of attorneys‟ fees. Because awarding attorneys‟ fees is rare under the American Rule, a
finding of bad faith is generally required before attorneys‟ fees may be awarded. See Chambers,
501 U.S. 32 at 45−46; Radloff, 470 N.W.2d at 155-56. While BNSF has attempted to convince
this Court that its misconduct was not perpetrated in bad faith, this Court has made detailed
findings to the contrary. Having already found that BNSF‟s misconduct constitutes bad-faith
litigation conduct, this Court now turns to BNSF‟s second contention.
b. Factual Basis for Determining Fees
Plaintiffs have requested that this Court award attorneys‟ fees on two separate grounds.
The first is based on the amount of time that Plaintiffs‟ attorneys worked on this case that can be
directly attributed to BNSF‟s misconduct. This request is limited only to extra time that
Plaintiffs were forced to work because of BNSF‟s misconduct; not the amount of hours that were
required regardless of BNSF‟s misconduct. To support this request, Plaintiffs‟ counsel submitted
detailed affidavits outlining the estimated extra time that they were required to work because of
BNSF‟s misconduct. Plaintiffs provided an estimate of counsels‟ hourly wages because
Plaintiffs‟ counsel were retained pursuant to a contingent-fee agreement. Plaintiffs contend that
hourly charges directly attributable to BNSF‟s misconduct total $1,152,140.00. Plaintiffs‟
second request is based on contingency fees that Plaintiffs‟ counsel would be entitled to receive
based on the verdict returned in Plaintiffs‟ favor. This request totals $8,640,000.00.
1. Hourly Rate Attorneys’ Fees
BNSF objects to Plaintiffs‟ hourly rate attorneys‟ fees request, contending that Plaintiffs‟
request should be based on precise and contemporaneously prepared time sheets and not guesses
or estimations. While BNSF admits that attorneys‟ fees and related expenses are an appropriate
sanction after a finding of bad faith, it objects to awarding them, in this case, because Plaintiffs‟
fee request is imprecise and cannot be linked to BNSF‟s misconduct. No one disputes that
attorneys‟ fees should be linked to specific misconduct. BNSF, however, is once again mistaken
in its position that the fruits of misconduct can only come in the form of an evidentiary
advantage to the offending party. BNSF continues to ignore the fact that Plaintiffs were forced
to expend vast amounts of time and money solely because of BNSF‟s misconduct. Having
already dispensed with these arguments, this Court turns to the factual bases for Plaintiffs‟
Plaintiffs have filed detailed affidavits and BNSF objects to the legitimacy of calculations
set forth in these affidavits. It now becomes necessary for this Court to determine whether
Plaintiffs‟ requests are sufficiently documented to support an award of attorneys‟ fees.
Plaintiffs‟ estimations are based on those specific instances when BNSF‟s misconduct led to
increased time spent on this case. Rather than providing a generic tally of hours worked,
Plaintiffs have identified specific misconduct that lead to an increase in Plaintiffs‟ workload,
fulfilling the requirement that Plaintiffs‟ requested fees be linked to BNSF‟s misconduct.
The bulk of BNSF‟s objection rests on the fact that Plaintiffs‟ stated number of hours are
estimations and not the product of precise and contemporaneously maintained time records.
Plaintiffs‟ counsel, however, are not hourly fee based attorneys. Rather, their practice is to enter
into contingency-fee arrangements where they receive payment only if they receive a favorable
verdict or settlement for their clients. As such, Plaintiffs‟ counsel do not keep the time sheets
that BNSF claims are required to support an award of attorneys‟ fees. While these hypothetical
time sheets would make it easier for this Court to make her factual determination on this issue,
there is no legal authority requiring this precise form of record keeping for attorneys who are
paid pursuant to a contingent-fee agreement. In fact, the industry standard is that these records
are not kept at all.
Plaintiffs‟ affidavits were detailed and accurately describe BNSF‟s misconduct and the
increased hours that were required because of that misconduct. Plaintiffs‟ affidavits are well-
reasoned, thoughtful, and believable. Additionally, Plaintiffs limited their requests to the number
of hours that they were certain were incurred. Plaintiffs did not include hours in their request
that they could not reasonably estimate. For example, Mr. Bongard‟s affidavit did not include
any number of hours because he felt that he could not reasonably estimate how many extra hours
he spent on this case due to BNSF‟s misconduct. Thus, this Court finds that Plaintiffs‟ affidavits
provide a reliable foundation for this Court‟s factual findings.
There are several hours, however, that should not be included in this Court‟s sanctions
award. Mr. Shapiro included the total time spent on this case in his affidavit. Mr. Shapiro also
estimated in his affidavit, however, that he would have spent fifty hours on this case regardless
of BNSF‟s misconduct. As such, Plaintiffs cannot link these fifty hours to BNSF‟s misconduct
and these hours should be subtracted from the total award (50 hours at an hourly billable rate of
$250.00, totaling $12,500.00). Additionally, Mr. Pottroff estimated that he spent an extra 700
hours on this case due to BNSF‟s misconduct, which this Court finds is an accurate
representation given the facts and circumstances of this case and Mr. Pottroff‟s vital role in its
prosecution. Mr. Pottroff represents that be believes that his billable rate would be $600.00 if he
were charging clients in a metropolitan area such as Minneapolis. Mr. Pottroff also represented,
however, that when billing clients on an hourly basis in the much smaller community of
Manhattan, Kansas, his hourly billing rate is $350.00. This Court is reluctant to accept Mr.
Pottroff‟s hourly rate estimate of $600.00 given his practice of billing clients in Kansas at an
hourly rate of $350.00. $400.00 is a realistic and competitive hourly rate for attorneys in the
Twin Cities with the skill and training of Mr. Pottroff. As such, the portion of the sanctions
award for Mr. Pottroff‟s fees should be calculated at an hourly rate of $400.00 instead of $600.00
(an hourly reduction of $200.00 x 700 hours, totaling $140,000.00).
This Court finds that the balance of Plaintiffs‟ requested attorneys‟ fees is reasonable,
sufficiently detailed, and linked to BNSF‟s misconduct. Accordingly, this Court awards
Plaintiffs $999,640.00 for attorneys‟ fees attributable to hours of work linked to BNSF‟s
2. Contingency-based Attorneys’ Fees
BNSF objects to Plaintiffs‟ contingency fee based request, contending that any request
for attorneys‟ fees must be linked to specific misconduct. This Court agrees with BNSF. Unlike
Plaintiffs‟ request for hourly fees, the contingency based fees cannot be linked to specific
misconduct. Instead, contingency fees represent the damages that BNSF was found, by the jury,
to have caused Plaintiffs; not the extra time and costs resulting from BNSF‟s misconduct. This
Court has already addressed the extra time and costs Plaintiffs incurred as a result of BNSF‟s
misconduct in this Court‟s hourly fee award. A contingency-based attorneys fees award, in this
case, would not be the least restrictive sanction available to this Court to deter future misconduct.
Accordingly, Plaintiffs‟ request for an award of contingency fee based sanctions is DENIED.
This matter was delayed for one year due to BNSF‟s misconduct. Because of that delay,
BNSF was allowed to retain $21,600,000.00, the amount the jury ultimately awarded Plaintiffs,
for an additional year. Plaintiffs now request that BNSF disgorge the return on investment that
BNSF enjoyed during that one-year delay. Plaintiffs also request that the sanction award include
the 4% post-verdict interest that Plaintiffs would have enjoyed for one year absent the delay.
BNSF objects to this amount being awarded because it does not reflect any prejudice that
Plaintiffs experienced and because Plaintiffs also advocated for a one-year continuance of the
trial in this case.
Before going any further, this Court must briefly address BNSF‟s contention that the one-
year delay was caused by Plaintiffs. Plaintiffs do not dispute that, in the end, they stipulated to
the one-year continuance of this trial. Plaintiffs did so reluctantly and with much trepidation.
During that time, Plaintiffs embarked upon a challenging and costly course of discovery that
continued right through trial. This Court has not lost track of the fact that BNSF controlled much
of the evidence in this case, which put Plaintiffs and this Court at a distinct disadvantage when it
came time to scheduling logistics. It was not easy for this Court to rearrange her schedule a
second time to accommodate a six-week jury trial. Tremendous court resources were consumed
in the management of this litigation. If evidence had been properly preserved, discovery requests
timely answered, witnesses cooperative, and had BNSF been reasonably candid with Plaintiffs
and this Court, a one-year delay most likely would not have been necessary and, perhaps, the
need for a trial would have obviated altogether. This Court remains convinced, and the record
supports the finding that the one-year delay in the proceedings can be primarily attributed to
This Court will now address Plaintiffs sanctions request under the Patton I six-factor test.
Two of Patton I’s six factors are particularly pertinent to Plaintiffs‟ request. The first
consideration is whether Plaintiffs were prejudiced by the one-year delay caused by BNSF‟s
misconduct. The second consideration involves determining the least restrictive sanction that
can be levied against BNSF that will also serve to deter future misconduct.
There is no doubt, based on the record before this Court, that Plaintiffs were prejudiced
by the one-year delay of the trial. Had the trial taken place as originally scheduled, Plaintiffs
would have enjoyed post-judgment interest of 4% for a period of one year. Additionally,
Plaintiffs‟ counsel were burdened by massive costs and the evolving complexities that continued
to emerge while Plaintiffs discovered further evidentiary and witness abuses up to and through
the trial. Witness memory and recall were further compromised by the passage of an additional
year. Once can only imagine the creative financing and debt obligations Plaintiffs took on to
keep their case afloat during the one-year delay This Court finds that Plaintiffs experienced
prejudice due to the one-year delay. Accordingly, this Court awards Plaintiffs $864,000.00 for
the post-judgment interest that they lost due to the one-year delay caused by BNSF‟s
The second, and more complex, consideration is determining the least restrictive sanction
that may be imposed that will also serve as a deterrent against future misconduct. Over BNSF‟s
objection, this Court has recognized deterrence as a factor to consider when determining an
appropriate sanction. BNSF‟s wide-ranging misconduct has no place in Minnesota‟s courts. In
addition to the crushing time and monetary burdens placed on Plaintiffs, BNSF‟s misconduct has
taxed the time and resources of the court system. The inherent power of the court exists to
ensure that courts have a mechanism to prevent these abuses on the judicial system and to ensure
that individual matters are subject to the basic tenets of justice and integrity. Through its
misconduct, BNSF retained the use of $21,600,000.00 for an additional year. During that time
period, according to BNSF‟s Vice President Charles Shewmake, BNSF enjoyed a return on its
investments ranging from 10% to 10.7%. Thus, BNSF profited from the one-year delay of the
trial by retaining the $21,600,000.00 verdict and realizing a profit on the investment of those
Allowing BNSF to benefit from its misconduct runs counter to the interests of justice and
fairness. BNSF, rightfully, reminds this Court that she has a duty to impose the least restrictive
sanction possible under the circumstances. But when encountering conduct as egregious as that
of BNSF‟s, this Court also has a duty to impose sanctions of a sufficient severity in order to deter
future misconduct of the same caliber. This Court finds that Plaintiffs‟ request for disgorgement
balances this Court‟s duty to impose the least restrictive sanction under the circumstances along
with the corollary goal of deterring future misconduct. Accordingly, this Court awards Plaintiffs
$2,210,000.00 for the return on the investment and use of funds BNSF enjoyed during the one-
year delay, that correspondingly Plaintiffs were denied.
4. Punitive Damages
Plaintiffs have requested sanctions awards ranging from $22,000,000.00 to
$45,000,000.00 in order to “punish and deter” BNSF. BNSF contends that this is merely a
resurrection of Plaintiffs‟ punitive damages request, which this Court has already denied. This
Court agrees. An award of that magnitude could only be viewed as being designed to punish
BNSF, and severely at that. In Foust v. McFarland, the Minnesota Court of Appeals rejected the
notion that spoliation sanctions should punish the offending party. While the present case goes
beyond spoliation, this Court, having already rejected Plaintiffs‟ request for punitive damages, is
reluctant to punish BNSF with the amount of sanctions that Plaintiffs now seek. Additionally,
these requested sanctions cannot be linked to BNSF‟s misconduct or to any resultant harm to
Plaintiffs. Also, granting these sanctions would violate this Court‟s duty to impose the least
restrictive sanction necessary to deter future misconduct. Thus, Plaintiffs‟ request for sanctions
to punish BNSF in the amount of $22,000,000.00 to $45,000,000.00 is DENIED.
What happened at the Ferry Street Crossing in the accident that claimed the lives of four
young adults on the evening of September 26, 2003? That is the $24,000,000.00 question.
Plaintiffs maintain that the crossing gates and warning devices were not functioning properly at
the time of the collision. BNSF counters that the crossing gates and warning devices were, in
fact, functioning properly but the driver of Plaintiff Frazier‟s Chevrolet Cavalier tried to drive
around the lowered gates at the time of collision.
At all times material to this proceeding, including the night of the accident, BNSF has
had the exclusive control of critical evidence, including the event recorder data that monitored
the train movement and warning device functions on September 26, 2003. The saga of what
happened to that critical evidence while in the exclusive control of BNSF ended up taking center
stage throughout the majority of these proceedings. In the early stages of discovery, this Court
was more inclined to deny or limit Plaintiffs‟ discovery requests based on BNSF‟s persuasive
representations that it had already provided Plaintiffs with the requested discovery in a suitable
alternative format. This Court was also persuaded, on more than one occasion, to place
restrictions on the scope of Plaintiffs‟ discovery requests. This Court‟s orders contained, inter
alia, chronological parameters for document requests, geographic boundaries for site inspections,
and/or limits on field inspections and BNSF employee witness interviews.
Put simply, BNSF had presented a fairly compelling impression that Plaintiffs‟ discovery
requests were overly broad because their counsel were on a fishing expedition designed to
unearth highly technical documents, sophisticated software programs, and codes that could be
funneled to a national railroad litigation consortium for use in pending cases against railroads
throughout the United States. It was only through the dogged determination of Plaintiffs‟
counsel and through their repeated and costly motions to compel discovery, that this Court began
to see a pattern of behavior on the part of BNSF that raised serious questions about the intentions
and veracity of BNSF regarding its handling of critical evidence in this case.
If BNSF, with all of its sophisticated and state of the art technology, had been in a
position to produce the very evidence, the HXP and HCA event recorder data, that would have
definitively established that the Ferry Street Crossing gates and warning devices were
functioning properly at the time of the accident, then why did BNSF choose not to make that data
available in the first place? If BNSF had presented the Patrol team and Plaintiffs‟ counsel with
the write-protected disk that Mr. Hildebrant claims he delivered to the Signal Supervisor in
accordance with BNSF protocol, there is a very good chance that the Patrol report would have
been put to bed without any lingering questions and Plaintiffs might have found some closure in
that report and decided against commencing this action against BNSF. Ironically, it appears that
BNSF‟s failure to be forthcoming only strengthened the resolve of Plaintiffs to find the truth.
The quest for the truth in this case has been painful and expensive. This Court need not reiterate
the costly ordeal that followed after Plaintiffs‟ commenced suit and served BNSF with their
February 3, 2004 formal evidence preservation request.
Based on the record before this Court, there is no doubt in this Court‟s mind, that BNSF‟s
misconduct in this case must be sanctioned. This Court has tried to fashion a sanction that is the
least restrictive and, at the same time, designed to deter future misconduct. It is this Court‟s
hope that, in the future, BNSF will practice what it preaches, namely to use all of its
sophisticated technology to monitor the safe operation of its trains while preserving its records
and evidence relating to train movement and warning devices on its tracks. It is this Court‟s
further hope that in the future, BNSF will cooperate with the law enforcement agencies assigned
to investigate railroad accidents and provide law enforcement with all evidence in its control that
may assist with that investigation. Finally, it is this Court‟s hope that, in the future, BNSF will
be more forthright in its interactions with opposing counsel and the Court. Hopefully, the
lessons learned in this case will promote more expeditious claims handling and dispute