Resolute Forest Products, Inc. v. Greenpeace International

Background

Resolute Forest Products, Inc., Resolute FP US, Inc., Resolute FP Augusta, LLC, Fibrek General Partnership, Fibrek U.S., Inc., Fibrek International, Inc., and Resolute FB Canada, Inc. sued Greenpeace International, Greenpeace, Inc., Greenpeace Fund, Inc., Daniel Brindis, Amy Moas, Matthew Daggett, and Rolf Skar. Resolute’s remaining claims were defamation claims based on December 2016 and May 2017 statements that Resolute was operating in the Montagnes Blanches.

After a contentious discovery process, both sides moved for sanctions. Resolute argued that Greenpeace failed to preserve Skype messages from a period surrounding the Quebec minister’s statement about a misleading map and Greenpeace’s later statements. Greenpeace argued that Resolute violated a discovery order concerning damages interrogatories, failed to preserve or search for evidence, and produced more than 14,000 documents late.

Resolute’s Motion for Sanctions

The court applied Federal Rule of Civil Procedure 37(e), which governs lost electronically stored information. The rule permits measures to cure prejudice when information should have been preserved, was lost because reasonable preservation steps were not taken, and cannot be restored or replaced through additional discovery. More severe sanctions require an intent to deprive another party of the information’s use.

The court found that Resolute did not show that Greenpeace generally failed to take reasonable preservation steps. Greenpeace had issued litigation holds, and the record supported the conclusion that Microsoft’s 2017 migration of Skype affected the storage of older messages. The court also found no evidence that the individual defendants intentionally deleted the messages. However, the court found a limited loss of Skype messages caused by Brindis’s failure to turn off the auto-delete setting on his personal account. The court found that some messages were likely lost, could not be restored through additional discovery from Microsoft, and prejudiced Resolute because they might have shown communications during a critical period.

The court did not find intentional destruction and concluded that terminating sanctions or an adverse jury instruction were not warranted. It recommended a short factual statement informing the jury that Brindis had a duty to preserve Skype messages but that some messages were lost while the auto-delete setting remained active. The court ordered Greenpeace to pay Resolute’s attorney’s fees for meeting and conferring about Brindis’s auto-delete setting and 10 percent of the time spent on Resolute’s sanctions motion.

Greenpeace’s Motion for Sanctions

The court found that Resolute violated the January 20, 2021 discovery order by adding significant new damages categories in April 2022, including alleged losses involving offline paper machines, impaired mill investments, financing, and stock sales. The court rejected Resolute’s argument that the April responses merely supplemented previously disclosed information. It concluded that the new information should have been disclosed earlier, that the delay was not substantially justified, and that Resolute’s conduct constituted an abuse of the discovery process.

The court recommended evidentiary sanctions excluding damages theories first disclosed in the April 2022 interrogatory responses and any supporting evidence. It also ordered Resolute to pay attorney’s fees caused by the failure to timely provide the damages information, including fees for communications seeking clarification and certain fees incurred in bringing the sanctions motion.

On alleged evidence loss, the court found that Resolute’s general litigation hold and related preservation efforts did not establish that its failure to issue a case-specific hold caused evidence to be lost. The court did find spoliation of text messages and Seth Kursman’s emails and custodial documents. It found that Resolute did not search or preserve work-related text messages and that the volume of Kursman’s produced documents was troublingly small compared with his testimony about his emails and work. The court found this loss prejudicial and recommended a short factual jury statement about Resolute’s duty to preserve and its failure to do so. The court ordered Resolute to pay Greenpeace’s attorney’s fees for addressing these two categories of documents.

The court rejected or declined to find sanctionable spoliation concerning personal email accounts, local documents on personal devices, hard copies under Rule 37(e), Kevin Goulding’s documents, email blasts, documents found in third-party productions, disaggregated document drafts, and missing metadata. It separately found that Resolute acted in bad faith by producing large groups of documents late, including documents shortly before depositions. The court ordered Resolute to pay fees for rescheduling depositions and reviewing newly produced documents.

Disposition

Judge Kane A. Dada granted in part and denied in part Resolute’s motion for sanctions, and granted in part and denied in part Greenpeace’s motion for sanctions. The court recommended the jury statements and evidentiary exclusions described above, ordered the specified attorney-fee payments, awarded Greenpeace 80 percent of the time spent on Greenpeace’s sanctions motion because of its limited success on spoliation, and directed the parties to meet and confer about the fee amounts. If they could not agree, the order set a December 1, 2022 deadline for fee motions absent an agreement to extend it.