Document ZBkV9poXXXB2LX1Lg42v1od8p

Afua- ir / / IN TH E C IR CU IT COURT OF WOOD COUNTY, W EST VIRGINIA JACK w. LEA CH , et al., Plaintiffs, E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation, Dfendant. CTVIL A C TIO N NO. 1.C-608 (Judge Hill) ORDER GRANTING PLAINTIFFS' SECOND MOTION FOR SANCTIONS AGAINST DUPONT On April 18,2003, came Plaintiffs, by their counsel, Robert A. Bilott, Larry A, Winter, and R. Edison Hill; Defendant E. I. du Pont de Nemours and Company ("DuPont"), by its counsel, Laurence F. Janssen. Stephen A. Fennell, Diana Everett, and Heather lleiskel IJones; and Defendant Lubeck Public Service District, by its counsel, JohnR. McGhee, for a hearing on Plaintiffs' Second Motion for Sanctions Against DuPont. As explained below, the Court hereby. GRANTS Plaintiffs' Second Motion for Sanctions Against DuPont. The Court, having considered the pleadings and filings o f the parries in support o f and in opposition to Plaintiffs' Second Motion for Sanctions Against DuPont, including the results o f the deposition of Gerald R. Kennedy and having taken under further advisement and consideration the arguments and representations o f counsel during the July 16,2002 and April 18,2003, hearings on this Motion, hereby FINDS as follows: ENTERED CONTAIN NO OR! MAY - I 2003 CAROLEAWES Q iR K CIRCUITCOURT 000532 1.; DuPont violated this Court's February 1, 2002, Order by failing to produce all documents responsive to Plaintiffs' outstanding document requests within twenty (20) days. 2. DuPont violated this Court's April 4,2002, Order giving DuPont until April 19,2002, to complete document production, which included this Court's specific warning that if its document production was not completed by April 19 "appropriate sanctions will be imposed on DuPont.1 3. While Plaintiffs' Second Motion for Sanctions was pending, DuPont acknowledged in a letter to the Court dated July 2,2002, that Gerald R. Kennedy, D uPont's lead toxicologist on C-8 issues, had destroyed evidence relating to C-8 while Plaintiffs' discovery requests for that evidence were pending. 4. DuPont, without adequate justification or excuse, engaged in spoliation o f evidence through Mr. Kennedy's destruction o f written and electronic documents as described in paragraph 3 above, and has continued to produce thousands of pages of historic C-8 documents after August 16,2002, despite this Court's August 8,2002, Order that DuPont certify that it had produced all responsive historic C-8 documents by no later than August 16, 2002. Upon careful consideration and balancing of the various equitable considerations and factors addressed by the parties and their pleadings, filings, and oral argument concerning the context and nature o f the conduct at issue, along with the potential and actual prejudice to Plaintiffs from such conduct and the evidence in the record to date relating to Plaintiffs' proposed sanctions, as clarified during oral argument on April 18, 2003, the Court hereby CO NCLUD ES that the monetary sanctions requested by Plaintiffs, in addition to the negative inference jury instruction that this Court previously ruled would be provided at trial, are fair, equitable, and appropriate as sanctions under Rule 37 of the West Virginia Rules o f Civil Procedure, and are hereby GRANTED. Consequently, 2- - 000533 it is hereby O R D E R ED that DuPonl shall pay the attorneys fees, costs and expenses reasonably incurred by Plaintiffs in addressing and bringing to the Court's attention DuPont's violations of us discovery obligations, including violations of the Court's February 1, 2002, April 4, 2002, and August 8,2002 Orders. Plaintiffs shall submit to the Court an affidavit identifying the total amount of attorneys fees, costs, and expenses to be paid by DuPont DuPont excepts and objects to the Court's rulings herein. ENTER this PRESENTED RY: R. Edison Hill Harry G- Deitzler (WVSB #981) Hill, Peterson, Carper, B eb & Djsjtzler, p l.l .c. NorthGatc Business Park 500 Tracy Way Charleston, WV 25311-1261 304-345-5667 Gerald J. Rapien Robert A. Bilott Taft, S i fc-n inus & Hollister llp 425 Walnut Street, Suite 1800 Cincinnati. OH 45202-3957 513*381-2838 Lany A. Winter (WVSD #4094) Winter Johnson & Hill pllc P.O. Box 2187 Charleston, WV 25328-2187 304-345-7800 Courts*}for Plaintiffs 15161.5 S TA I F OF VVfcST VIRGINIA COUNTY QF WOOn, TO-WIT: i, GAHUL5 JONS. Clerk of the Circuit Court of Wood County, West Virginia, hereby certify that the foregoing is a true end complete copy of an order entered ins*id Court, on the^ day of -- ____ >_!.. as fUJlyas the same appears to me of record. ;; Given under my hand and seal of said Circuit ;Court, this the Scn, d/nf May (ZuOT_ i j' . jL E t & f 5V jsfvO i of toe Circuii: County, S ii 000534"