Document DdYK3jBompNVYde35EeB6GoKd

AR 286 -- 1183 IN THE CIRCUIT COURT OF WOOD COUNTY, WEST VIRGINIA JACK W. LEACH, et al., Plaintiffs, v. Ea.nIdDLUBUECP KDPEUONBLEIN MCOSUT ERRSVIACNEDDCIOSMTPRAINCTY, CIVIL ACTION NO.: 01-C- 608 (Judge Hill) = go Defendants. f&g in IWNEJSUNTCVTIIROGNINOIRADDEERPDAIRRTEMCETNEDT TO OF DEE ANN STAATS, ENVIRONMENTAL PH.D. AND THE PROTECTION 2a = On June 12,2002, the plaintiffs appeared by their counsel R. Edison Hill, Robert A. Blot, and Larry A. Winter, defendant E.I. Du Pont De Nemours and Company appeared by its counsel, Laurence F. Janssen, Charles L. Woody andHeather Jones, defendant Lubeck Public Service District : appeared by its counsel, John R. McGhee and Richard A. Hayhurst, and the deponent Dee Ann Staats, Ph.D. and the West Virginia Department of Environmental Protection appeared by their counselChristopher Negley fortelephonic hearing on plaintiffs' motiontoenjoin the West Virginia Department of Environmental Protection ("WVDEP") and Dee Ann Staats, Ph.D. ("Staats") from destroying records relevatnhetCt-o8 investigation. Plaintiffs have argued in essence that Staats and the WVDEP failed to comply with this Cour's Civil Case Subpoena issued on June 6, 2002 ("Subpoena") which required Staats to produce to plaintiffs at her deposition on June 6, 2002 all documents and tangible things in her possession, custody and control which were described in an attachment to the Subpoena. During oral argument, counsel for Staats and the WVDEP confirmed that Staatsdidnot produce allof the documents described in the attachmentot the Subpoena in part because someof those documents were destroyed. Fre, Bn CONTAIN NC C81 UH 7620 000138 oii Pursuant 0 the representations and admissionsof the parties, the deponent Staats and the WVDEP through their respective counsel, the Court hereby issues the following findings of fact. Findingsof Fact 1. Staats was duly served with the Subpoena in the above-styled civil action on June 4, 2002 scheduling her deposition at the officesofHil Peterson Carper Bee & Deitzler in Charleston, WV commencing on June 6, 2002. 2. TheSubpoena commanded Staats to appearand give testimony ina deposition inthe above-styled civil action and to produce and permit inspection and copyingofdesignated books. documents and tangible things which were more particularly described in the "Attached List Production/Inspection'', attached to and made a part ofthe subpoena, al in accordance with Rule 45 ofthe West Virginia Rules of Civil Procedure. 3. Thedeponent Staats appeared on June 6,2002 for her deposition, but did notproduce all documents which were described in the attachment to the Subpoena. 4. During her deposition on June 6 and 7, 2002, Staats testified that she did not produce some documents in response to the Subpoena because she had destroyed or caused the destruction ofcertain documents which would otherwise have been subject to the Subpoena. During the hearing on June 12, 2002 counsel for Staats and the WVDEP conceded that Staats and the WVDEP have destroyed and otherwise failed to save and preserve various records, documents, including drafs. comespondence, emails and other documents relating to the WVDEP's investigationof C-8 all of which were subject 0 the Subpoena. Staats and the WVDEP further conceded that such destruction of documents and failure 10 produce in accordance with the Subpoena was the result of Staats and the WVDEP's standard practice and policy of destroying documents they anticipate might be the 2. 000139 subject ofa subpoena in tis ligation. Staats argued that it has ben her routine practice to destroy drafts, documents and email correspondence for many years. particularly when she anticipated such documents might be subpoenaed. She further `argued that she is not required by law to produce her records for this litigation, notwithstanding the service of the Subpoena, and that in the absence of an injunction she intends to continue her routine practice of destroying documents and email correspondence relating to the WVDEP's investigation of C-3. 5. Staats and the WVDEP further `argue that since she is not a "party" to thislitigation, she is beyond the jurisdiction of this Court and therefore not subject to its orders. Based uponthese findingsof fact, the Court hereby makes the following conclusionsof law, Conclusions of Law 1 `This Court has jurisdiction over the deponent Staats and her employer the WVDEP pursuant to the Subpoena which was duly issued and served upon her pursuant to Rule 45ofthe West Virginia RulesofCivil Procedure to give a deposition and to produce documents in the above. styled civil action which is pending in this Coun. Staats' arguments regarding the lack of Jurisdiction over her are meritless. 2 `The admitted practice ofStaats and the WVDEP`of destroying documents which she anticipated would be subpoenaed in this litigation constitutes obstructionofjustice in this Court which is subject to the inherent powerof this Court to police and punish. 3. `The admissionsofStaats and the WVDEP that her practiceofdestroying documents which are subject 0 the Subpoena will continue in the absenceofan injunction by this Court creates. exigent circumstances which provide just cause for this Court in scheduling this hearing on an a 090140 expedited basis and upon shorter noice than that provided for in Rule ofthe West Virginia Rules of Civil Procedure. 4 Staats and the WVDEP have presented no defense to plaintiffs' motion cognizable by law and the arguments advanced in opposition to plaintiffs' motion for injunctive relief are irrelevant and without any basis in fact or law. 3 The plaintiffs have demonstcated ample grounds for the issuance of the injuncrive reliefon an emergency basis as prayed for and their motion for an injunction against Staats and the WVDEP is hereby granted. Its therefore accordingly ORDERED, ADJUDGED and DECREED that: 1. Dee Ann Staats, Ph.D. and the WVDEP are enjoined from destroying any and all documents and things related to the WVDEP's investigationofC-8, including but not limited to the documents and things plaintiffs identified in the attachment to the Subpoena and all notes and draft Teports prepared and/or possessed by Staats, TERA and the WVDEP and all persons under the controlofStaats and the WVDEP. 2. Dee Ann Staats, Ph.D. and the WVDEP are enjoined from destroying emails and are ordered to preserve both their internal computerdata relating to the investigation ofC-8, and all such data stored not only on WVDEP desktop and laptop computers, but any and all personal laptop. computers, including but not limited to the personal laptop computerofStaats. 3. Plaintiffs are hereby authorized to engage computer experts to be selected and paid by the plaintiffs to examine the laptop computers and in-house computers utilized by Staats and the. WVDEP in order to retrieve any and all information pertaining to C-8 that has been deleted or for which attempts have been made to delete the data and/or information, and Staats and the WVDEP 4. 000141 shall immediately make all such laptop computersand in-housecomputers available toplaintiffsand their experts for such document retrieval purposes upon plaintiffs request. ENTERED with of June, 20; PRESENTED BY: 7 Geone ze ; Judge ofthe Circuit Court of `Wood County Tam A I OF: WLaIrNrTy EAR. J2 OHNd SON(&WVHSIBLL#P4L0L9C4) P.O. Box 2187 Charleston, WV 25328-2187 (304) 345-7800 R. Edison Hill (WVSB#1734) HHialrl,ryPeGt.erDseoint,zlCearrp(eWrV,SBBe#e981) & DEITZLER, P.L.L.C. 5No0r0tThrGaactye WBuasyiness Park Charleston, West Virginia 25311-1261 (304) 345-5667 Geri1. Rapien Robert A. Bilott TAFT, STETTINIUS & HOLLISTER, LLP 1800 Firstar Tower 425 Walnut Street Cincinnati, OH 45202-3957 (513) 381-2838 Counsel for Plaintiffs HCheaartlheesr LH.eiWskoeoldlyJo(nWesVS(BW#V4S1B3#04)913) SPILMAN THOMAS & BATTLE PLLC Spilman Center 300 Kanawha Boulevard East Charleston, WV 25301 (304) 340-3800 Laurence F. Janssen 6S3T3EPWTeOsEt&StJhOHStNrSeOetN,,SLuLiPte 700 Los Angeles, CA 90071 C(2o1u3n)se4l3f8o-r94E.00I. du Pont de Nemours and Company yy John RY" McGhee Jr. (WVSB#5205) Kay CASTO & CHANEY PLLC 1600 Bank One Center Virginia Street East Charleston, WV 25301 (304) 345-8900 5. 000142 RECEIVED A COPY OF: Richard A. Hayhurst P.O. Box 86 Parkersburg, WV 26102 (304) 422-1445 Counselfor Lubeck Public Service District Christopher D. Negley (WVSB#6086) 'WVDEP 1356 Hansford Street Charleston, WV 25301 (304) 558-9160 CPoIrWuoensttseceVtliirofgnoirniDaeDeepAanrntmSteanattso,fPEhn.vDi.roannmdenthteal -8- 000143