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CASE 0:11-cv-02116-SRN-SER Document 191 Filed 01/23/14 Page 1 of 27


Ellen S. Ewald, Plaintiff, vs. Royal Norwegian Embassy, Defendant.

Civil No. 11-CV-02116 (SRN/SER)


INTRODUCTION Plaintiff Ellen Ewalds motion for sanctions is so meritless that it is deserving of sanctions itself. Having engaged in discovery creating legal expense that dwarfs the amount at issue, Plaintiff brings this motion regarding (1) supposedly highly relevant information she ignored throughout discovery; (2) an issue that is already resolved; and (3) documents she already has. As this Court aptly observed: The scale of discovery and diligence of the parties in pursuing information in this case, when viewed in the light of the nature of the dispute, is breathtaking. Ex. 1, M.J. Rau Order at 4-5 (Oct. 8, 2013) (Doc. 129) (M.J. Rau Order). 1 Plaintiffs motion is another example of misusing the litigation system in an effort to make the Embassys defense so expensive and unpleasant that the Embassy is denied its day in court.

All exhibits not attached to Plaintiffs memorandum are numbered and attached to the Affidavit of Joel P. Schroeder (Schroeder Aff.), filed herewith and referred to as Ex. For ease of reference, the Embassy will refer to the lettered exhibits attached to Ms. Fischers affidavit as Pls Ex.

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Plaintiff alleges that the Embassy failed to preserve and spoliated: (1) a mobile phone not provided by the Embassy but used by Gary Gandrud; (2) a laptop computer that Plaintiff used at the beginning of her employment at the Honorary Consulate until it crashed; and (3) documents received by Innovation Norway, a Stakeholder institution not party to this lawsuit. Plaintiffs allegations of spoliation fail for multiple reasons. Gandruds Mobile Phone The Court ordered the collection and production of text messages and voice messages on Embassy-provided mobile devices; Gandruds mobile phone was not Embassy-issued. Plaintiffs argument is based on a single reference within the 89,001 documents produced to a text message sent by Gandrud in an email dated February 23, 2011. Although Plaintiff now claims prejudice because of her supposed inability to discover potentially highly relevant facts, Plaintiff did not ask a single question in depositions regarding the email referring to a text message despite having the email since December 2012. Plaintiffs counsel did not raise the issue of collection of text and voice messages until May 31, 2013, more than two years after she first threatened litigation and the weekend before a private mediation, which itself was a month before the discovery deadline. Plaintiffs Initial Laptop The Court has already rejected this claim. Plaintiff claims the Embassy should be sanctioned for not preserving information. But, Plaintiff stated the following on February 2, 2010, in response to an inquiry about how she and her new laptop were doing: I got a new laptop (lost everything on the other one :-( (Really dumb!).

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Innovation Norways Documents Innovation Norway is not a party to this lawsuit. Plaintiff misconstrues Ambassador Strmmens August 1, 2013 letter when she states that Ambassador Strmmen admitted Innovation Norway is a part of the Embassy; in fact, he stated that the Steering Committee members were part of an internal working group under Norways Public Administration Act. The responsibility for archiving documents relating to Plaintiff rested with her employer, the Ministry of Foreign Affairs (MFA); not the Stakeholders. The Embassy made clear to Plaintiff what it would and would not produce. The Embassy, a part of the MFA, produced hundreds of documents regarding the Stakeholders Steering Committee, including multiple copies of the meeting minutes allegedly missing and 107 emails sent to or received by Svein Berg, the Innovation Norway representative on the Committee. Plaintiff never listed Innovation Norway, or any of its representatives, as a person with knowledge on her twice-amended Initial Disclosures or interrogatory answers. There is good reason for thisInnovation Norways representative on the Steering Committee had very little interaction with Plaintiff. This is confirmed by the fact that Plaintiff never sent an email only to Mr. Berg, or vice versa. The Embassy respectfully requests that the Court deny Plaintiffs motion and award the Embassy its full attorney fees and costs in opposing Plaintiffs meritless motion. BACKGROUND I. Plaintiff and Her Counsel Have Used Discovery and Discovery Motions as a Weapon to Prevent the Embassy From Having Its Day in Court. Defendants, as well as plaintiffs, are entitled to their day in court. But civil defendants that exercise their right to prove that they did not violate the law are not sentenced to boundless discovery and litigation costs far exceeding the amount at issue. That is the reason the Federal Rules require that discovery be proportional. Fed. R. Civ.

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P. 1; Fed. R. Civ. P. 26(b)(2)(C). 2 Pre-trial proceedings in this case have long ago violated this foundational principle. Five months ago, the parties had spent

approximately $1,500,000 on this matter, and fees and costs have continued to grow. 3 As this Court correctly stated: If ever a case implicated the proportionality principles and provisions of the Federal Rules governing discovery, this case does. Ex. 1, M.J. Rau Order at 5. And, as Judge Louise Dovre Bjorkman, Chair of the Minnesota Supreme Courts Civil Justice Reform Task Force, has implored: it simply makes no sense to spend more money on discovery in a case than is in dispute between the parties! See Ex. 2, Louise Dovre Bjorkman & David F. Herr, Reducing Costs & Delay: Minnesota Courts Revise Civil Case Handling, BENCH & BAR OF MINNESOTA (May/June 2013), available at The vast bulk of the Embassys expenses have been incurred in responding to Plaintiffs discovery requests, including collecting and reviewing over 187,000 pages of

Accord Kademani v. Mayo Clinic, No. 09-219, 2012 WL 5845338, at * 2 (D. Minn. Nov. 19, 2012) (Rule 26(b)(2)(C)(ii) requires the Court to limit discovery when a party has had ample opportunity to obtain the information it seeks[.]); Kay Beer Distrib., Inc. v. Energy Brands, Inc., No. 07-C-1068, 2009 WL 1649592, at *4 (E.D. Wis. June 10, 2009) (The mere possibility of locating some needle in the haystack of ESIdoes not warrant the expense [defendant] would incur in reviewing it.); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 362-63 (D. Md. 2008) ([R]ules of procedure, ethics and even statutes make clear that there are limits to how the adversary system may operate during discovery.); Sommerfield v. City of Chicago, 251 F.R.D. 353, 358 (N.D. Ill. 2008) (The discovery rules are not a ticketto an unlimited never-ending exploration of every conceivable matter that captures an attorneys interest.). These mounting costs include approximately $10,000 in consultant and/or lawyer time incurred because Plaintiff does not remember the password to her Embassyprovided mobile phone. See Doc. No. 189, Letter from J. Schroeder to J. Nelson (Jan. 17, 2014).

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documents written in English and Norwegian, producing 89,001 pages of responsive documents, and defending ten depositions in four countries. II. The Context for Plaintiffs Claims. The Court is familiar with the facts and claims. We present the following

abbreviated discussion to provide context for the issues presented by Plaintiffs motion. A. The Education Position and the Business Position In 2008 the Embassy created two officer positions at its Honorary Consulate in Minneapolis. These positions were unique and did notand do notexist anywhere else within Norways MFA. One officer position focused on higher education and research (the Education Position, held by Plaintiff), and the other focused on innovation, entrepreneurship, promotion of business, and commercialization (the Business Position, held by Anders Davidson). B. The Role of the Stakeholders and Innovation Norways Very Limited Role with the Education Position The persons holding the Education Position and the Business Position, Plaintiff and Davidson, were employed by the MFA. Six Norwegian institutions (the

Stakeholders) committed to provide 1.5 million Norwegian Kroner to help cover the cost of the two positions for a three-year trial period. The Education Position was to strengthen exchange and networks between the U.S. and Norway within research and higher education in team with the Science Counselor at the Embassy; its goal was to work with the Science Counselor and relevant Stakeholders toward Norways strategies for higher education cooperation with the U.S.

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Ex. 3. The job description specifically mentioned the Norwegian Association of Higher Education Institutions and the Ministry of Education. The Business Position was to strengthen commercial relations between the Midwest and Norway within innovation, business development, and commerce in team with Innovation Norways representatives in the U.S.; its goal was working toward Norways strategies for innovation, technological, and commercial cooperation with the Midwest. specifically mentioned Innovation Norway and SINTEF. Id. A Stakeholder Steering Committee was established to review the work of and provide direction to the two expert positions. The Steering Committee comprised one representative from each stakeholder institution and the Chair, Liv Finborud, who was an MFA employee. Innovation Norway had very little to do with Plaintiffs Education Position. Davidsonnot Plaintiffworked closely with Innovation Norway because of its focus on developing business for Norwegian companies. Ex. 4, Davidson Tr. 91-92. In The job description

contrast, Plaintiff had almost no interaction with Innovation Norway. Ex. 5, Berg Decl., 15 (Doc. 137-1). As explained by the declaration of Svein Berg, Innovation Norways representative to the Steering Committee: Although [the Stakeholders] wanted both positions to be successful, Innovation Norway was primarily interested in the work of the Business Position and agreed to provide funding for the positions because it saw potential benefits from the work of the Business Position. ... During my time working on the project, I had very little interaction with Ms. Ewald.

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Id. at 7, 15 (emphasis added).

Innovation Norways limited role in Plaintiffs

employment is confirmed by the fact that of the thousands of pages of documents produced by the Embassy regarding the Steering Committee, there are no communications exclusively between Plaintiff and Mr. Berg. Schroeder Aff., 8. III. The Embassys Legal Holds. By way of a phone call and demand letter from her counsel, Plaintiff first threatened litigation in March 2011. Fischer Aff., 2-3. The parties engaged in

unsuccessful settlement discussions in April and May 2011. Id. at 4. In April 2011, the Embassy sent a legal hold to a variety of individuals identified in Plaintiffs March 2011 demand letter. Schroeder Aff., 2. Plaintiff sued in July 2011, naming as defendants the Royal Norwegian Embassy and Gary Gandrud. Doc No. 1-1. As discovery commenced and the litigation unfolded, the Embassy updated its legal hold in July 2012, September 2012, and October 2012. Schroeder Aff., 2. Despite Plaintiffs recent allegation that Innovation Norways documents are now critical to this lawsuit, Plaintiff never identified Innovation Norwayor its representative on the Steering Committeeas having information relevant to this lawsuit in her twiceamended Initial Disclosures or in her interrogatory answers (even though her disclosures have been amended as recently as November 2013). 4 Plaintiff did, however, identify the

On July 25, 2012, Plaintiff served her Initial Disclosures. Plaintiff listed individuals likely to have discoverable information relative to disputed facts alleged with particularity in the pleadings and subjects of information. Ex. 6, Pls Rule 26(a)(1) Disclosures at 2. Plaintiff identified the several individuals, including: (1) Morten Aasland Ministry of Foreign Affairs; (2) Lars AukrustRoyal Norwegian Embassy; (3) Christina CarletonRoyal Norwegian Honorary Consulate General; (4) Anders 7

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MFA employee who served as Chair of the Steering Committee, Liv Finborud, as a person having knowledge related to her claims. Ex. 6, at 2. The MFA, as Plaintiffs employer, had archiving and preservation responsibility for documents relating to her employment, including documents regarding the Steering Committee.

DavidsonMinneapolis, MN; (5) Liv Mrch FinborudHead of Steering Committee; (6) Aud KolbergDirector General of Human and Financial Resources Department; (7) Gary GandrudRoyal Norwegian Honorary Consulate General; (8) Lars HenieRoyal Norwegian Embassy; (9) Jan Aage LarsenRoyal Norwegian Embassy; (10) Berit Johne Royal Norwegian Embassy; (11) Former US Vice President Walter F. Mondale Minneapolis, MN, (12) Elin Bergithe RognlieRoyal Norwegian Embassy; (13) Ambassador Wegger C. StrmmenRoyal Norwegian Embassy; (14) Johan VibeRoyal Norwegian Embassy; and (15) Elisabeth WembergRoyal Norwegian Embassy. Id. at 23 (emphasis added). Plaintiff provided a catch all category for [c]urrent and former employees of Defendant Royal Norwegian Embassy. Id. at 2 (emphasis added). Plaintiff noted: Additional persons may be identified as discovery continues. Id. at 3. On April 10, 2013, Plaintiff supplemented her disclosures and added 11 additional individuals likely to have discoverable information: (16) John BrekkeBrekke Consulting, Inc., (17) Marius HansenTysvar LLC, (18) Urd MilburyRoyal Norwegian Embassy; (19) Kermit NashGray Plant Mooty; (20) Lois QuamTysvar LLC; (21) Judd SheridanUniversity of Minnesota; (22) Ivar Sorenson; (23) Kjell BerghHonorary Consulate of the United Republic of Tanzania; (24) Paul PribbenowAugsburg College; (25) Richard TorgersonLuther College; and (26) Curt RiceUniversity of Tromso, Norway. Ex. 7, Pls Supp. Rule 26(a)(1) Disclosures at 4-5. On November 19, 2013, Plaintiff again supplemented her Initial Disclosures by adding five additional individuals likely to have discoverable information: (27) Jeffrey Mueller; (28) Patrick KullmanCG3 Consulting; (29) Katherine H. Tunheim; and (30 and 31) Ola Haugen and Simen Smeby LiumWikborg Rein & Co. Ex. 8, Pls Second Supp. Rule 26(a)(1) Disclosures at 6. Plaintiff also included a catch-all: Any person who may have relevant information and whose identity becomes known. Id.

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The Embassys Work In Responding To Plaintiffs Discovery Requests. Much of the extensive work of the Embassy and its counsel to respond to

Plaintiffs discovery requests is described in the Embassys memorandum opposing Plaintiffs earlier motion to compel. See Doc. 116, at 2-13. In summary: Prior to the commencement of discovery, the parties did not discuss the production of discreet forms of ESI, such as text messages, or imaging of devices. Id. at 4. This Court held a pretrial conference in July 2012, in which it told the parties to reach agreement on e-discovery issues at the time to avoid sideshows later. Id. at 5. Afterwards, there were no substantive discussions among counsel regarding the specific types of ESI that would be preserved, collected and produced in this matter. In October 2012, the Embassy responded to Plaintiffs discovery requests. In December 2012, the Embassy sent the court and Plaintiff a Diplomatic Note, which included a list of the discovery that the Embassy was willing to provide. Plaintiff did not challenge the limits that the Embassy had drawn. Id. at 6. In December 2012, the parties counsel agreed to use a set of six search terms to search the email accounts of a variety of MFA custodians. Id. at 7; Ex. 9, Doc. No. 117-5, Email from J. Schroeder to S. Fischer (Dec. 13-14, 2012). After Plaintiffs counsel agreed to the use of six search terms to search the emails of MFA employees, the Embassy ran the search terms and provided the search-term hits to its counsel. Plaintiff never asked that the Embassy run searches on the documents of Innovation Norway, or any other Stakeholder. Schroeder Aff., 3. Among other things, the Embassys counsel reviewed over 187,000 pages of potentially-responsive documents that had been collected. On December 3, 2012, the Embassy began producing documents on a rolling basis. Less than a month later, the Embassy had produced 62,481 pages of documents. In total, the Embassy has produced 89,001 pages of documents as illustrated by the following chart. Doc. 116, at 7-8.

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Production CD 1 2 3 4 5 6 7 8 9

Date Produced 12/3/2012 12/7/2012 12/14/2012 12/21/2012 1/11/2012 1/24/2013 2/18/2013 7/8/2013 10/18/2013

Bates Range RNE 00001-5796 RNE 05797-22402 RNE 22403 -41434 RNE 41435-62481 RNE 62482-62534 RNE 62535-87889 RNE 87890-88985 RNE 88986-88994 RNE 88995-89001

No. of Pages 5,796 16,606 19,032 21,047 53 25,355 1,096 9 7 89,001 pages produced 5

The Embassys search and other collection efforts gathered documents regarding the work of the Steering Committee. Schroeder Aff., 7. These documents include formal minutes of meetings, emails summarizing meetings in which minutes were not taken (for example, the person responsible for taking minutes was sick), and internal communications regarding the work of the Steering Committee. Id. For example, Mr. Bergs name appears on 933 documents in the Embassys production. Id. In October 2012, the Embassy asked the six Stakeholder representatives to voluntarily search for and collect relevant documents in their possession. Schroeder Aff., 9. Mr. Berg represented that he did not save any documents from that time. Id. After 99.9% of the Embassys document production had been completed, the Embassy produced and Plaintiff deposed ten witnesses on two continents, including depositions in Norway, Spain, and Belgium. Doc. 116, at 9. V. The Embassy Preserves Electronic Equipment. A. Plaintiffs Embassy-Provided Laptop The Embassy provided Plaintiff with a laptop computer. Plaintiffs laptop crashed in January 2010 and the Embassy provided her with a new laptop. Ex. 10, Email from E.

As the Court is well aware, 89,001 pages of documents is a truly extraordinary amount of documents to produce in a single-plaintiff employment case. Even Plaintiffs counsel was shocked by the amount of documents produced: I have never seen the production of 90,000 pages of documents in a single[-p]laintiff employment case. Doc. No. 110, Affidavit of Sheila Engelmeier, 41 (July 29, 2013). 10

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Ewald to M. Walther (Feb. 2, 2010). In response to an email inquiry from an Embassy I.T. representative about how Plaintiff and the new laptop were doing, Plaintiff explained that she lost everything on her previous laptop: Thank you. It is going great. I am back in Minneapolis now. I got a new laptop (lost everything on the other [laptop] :-( - Really dumb!). Id. Plaintiff never claimed her old laptop (from which she lost everything) should have been preserved when she threatened litigation (in March 2011), commenced litigation (in July 2011), or at the Rule 26(f) conference (in June 2012). 6 Though the Embassy had no obligation to preserve Plaintiffs initial laptop, the Embassy did preserve the laptop she was using at the time her employment ended. Doc. No. 140, at 8-9; Doc. No. 120, Gleason Aff., 4. B. Ewalds and Gandruds Mobile Phones The Embassy also preserved, but never attempted to access until December 2013 (when directed to do so by the Court), Plaintiffs Embassy-issued phone. Doc. No. 120, Gleason Aff., 4. Gandrud did not have an Embassy-issued phone. Schroeder Aff., 11. Plaintiff did not raise the issue of text messages until May 31, 2013, and the Embassy opposed Plaintiffs request for a variety of reasons. See, e.g., Doc. No. 110-23,

And, everything evidently was not lost as Plaintiff forwarded on March 9, 2011 from her new laptop to her personal email account 547 Embassy documents to herself, including many that pre-dated the January 2010 laptop crash. Schroeder Aff., 6.


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at 8. 7 The Embassy and its counsel have been forthright about the fact that they did not take steps to collect text messages in this litigation. 8 They saw no reason to as such an exercise was never discussed early in the litigation; would have been an enormous waste of resources; and would have been disproportionate to the claims and defenses in this case. As stated clearly in its brief to Judge Nelson in support of this Courts Order largely denying Plaintiffs Motion to Compel: Because there was no discussion among the parties that text messages would be relevant to the claims and defenses in this case (either in June 2012 when the parties held their 26(f) conference or in late 2012 when the Embassy began producing documents), the Embassys counsel did not take steps to collect or produce text messages in this matter. Doc. No. 140, at 6; accord Doc. No. 116, at 30.

Amazingly, Plaintiff now claims that text messages sent by Plaintiff are critical and the Embassy has spent approximately $10,000 trying to recover the text messages because Plaintiff forgot her password. If Plaintiff knew she sent important text messages, why wait until the weekend before mediation and one month before the close of discovery to raise this issue? Plaintiff wrongfully implies the Embassys counsel was not forthcoming regarding Gandruds non-Embassy-issued mobile phone. Pls Br. at 7-8, 14. Counsel for the Embassy advised that text messages had not been collected. Doc. No. 140, at 6; Doc. No. 116, at 30. The Embassys counsel had no reason to believe that the Court would order the production of Gandruds Faegre & Benson mobile phone (and, in fact, it did not). Schroeder Aff., 11. Nonetheless, although the Courts November 20 Order did not order production of that phone, the Embassys counsel decided it would take steps to see if it could recover Gandruds text messages from the non-Embassy-provided phone. Schroeder Aff., 11. This is why Mr. Schroeder told Ms. Fischer on November 21: we are working on it, and why Mr. Schroeder did not instantaneously respond to Ms. Fischers inquiry. Fischer Aff., 5. The Embassys counsel learned that text messages could not be recovered. Schroeder Aff., 11. Mr. Schroeder then communicated this information to Ms. Engelmeier. Id.; See Pls Ex. D. 12

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In any event, Gandrud had a mobile phone as an attorney of the (then) law firm Faegre & Benson, LLP. Ex. 11, Letter from J. Schroeder to Judge Nelson, at 2 (Dec. 23, 2013). Attorneys are required to return their firm-issued phone when the attorneys association with the law firm ends. Id. Data from phones is then removed. However, all data from the phone is not lost. For example, emails are stored on the law firms server. Text messages sent to and from Gandruds phone were not stored on the server. Id. Among the 89,001 pages of document produced, there is a single email, sent on February 23, 2011, in which Gandrud indicates that he sent a text message the previous day. The document is Bates labeled RNE 835 and was among the first 900 pages of documents produced by the Embassy on December 3, 2012. Ex. 12, RNE 835. Plaintiff did not ask Gandrud about that document or text messages when he was deposed three months later (on March 4, 2013). 9 Schroeder Aff., 10. Nor did Plaintiff ask Christina Carleton (who is mentioned in the email) any such question when she was deposed a few days later (on March 8, 2013). Id. Plaintiff also did not ask Ambassador Strmmenthe recipient of the email (and text)about the email (or text) when he was deposed more than eight months after the document was produced (on July 11, 2013). Id. This is especially surprising when six weeks earlier Plaintiffs counsel specifically mentioned RNE 835 in her 17-page, pre-mediation deficiency letter. Doc. No. 110-22, Letter from Sheila Engelmeier to Joel Schroeder, at 14 (May 31, 2013). Plaintiffs counsel marked 55 documents as exhibits during Gandruds 7+-hour deposition, including several documents surrounding RNE 835. Schroeder Aff., 10 (e.g., RNE 975-79 (Dep. Ex. 26); RNE 952-53 (Dep. Ex. 28); RNE 1068 (Dep. Ex. 32); RNE 522-26 (Dep. Ex. 44); RNE 1082-83 (Dep. Ex. 48); RNE 1135 (Dep. Ex. 66)).


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Plaintiff Uses Norways FOIA Process to Seek The Same Documents from the Embassy and the Stakeholders That She Sought In Discovery In The U.S. In addition to Plaintiffs requests for production of documents (and despite her

claim that the burden of reviewing the documents produced by the Embassy was far too great to manage), Plaintiff hired a Norwegian law firm to request documents from the Norwegian government through Norways version of the Freedom of Information Act: the Public Administration Act (PDA). Plaintiff sent initial requests and deficiency letters to the Royal Norwegian Embassy in Washington, D.C., the Honorary Consulate in Minneapolis, and many of the Stakeholder institutions. At great time and expense to its staff, the MFA and the Stakeholder institutions responded to Plaintiffs requests. The Norwegian government produced documents to Plaintiffs Norwegian counsel. Every document Plaintiff produced that she received in response to her Norwegian FOIA requests to the Stakeholders that involved communications with MFA, Embassy, or Consulate personnel were also produced to Plaintiff by the Embassy in discovery. Schroeder Aff. 13. Any document Plaintiff has produced as a result of the FOIA requests that falls outside of what the Embassy produced to her is either (a) ministerial in nature or (b) not material in terms of shedding light on any of the issues in this case. Id. Tellingly, Plaintiff has not put forth a single document from any Stakeholder that would indicate relevant documents exist that have not already been produced to her. In response to the request that it received, Innovation Norway stated that because it was not Plaintiffs employer, the MFAnot Innovation Norwayhad responsibility


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for maintaining documents related to Plaintiff. 10 Pls Ex. G. Innovation Norway stated that its representative to the Steering Committee would have received Steering Committee-related information directly and could conclude that a document should be archived, but otherwise emails would have been deleted. Innovation Norway further explained that the cost of attempting to retrieve deleted email would be prohibitive, particularly since that material could be obtained from the MFA. In fact, this information had already been obtained from and produced by the Embassy. See Schroeder Aff., 8 (in the Embassys production, 933 documents contain Mr. Bergs name; 107 documents are emails where Berg is the sender or recipient of an email). In responding to the complaints of Plaintiffs Norwegian lawyers 11 regarding the PDA response, and according to the uncertified translation provided by Plaintiff, Ambassador Strmmen did not state that Innovation Norway is a part of the Embassy. Contra Pl. Mem. at 12-13; Ex. 13 (Doc. No. 183). Ambassador Strmmen stated that when the MFA appoints a working group that includes external members, communications between the MFA and working group members are internal documents.

Plaintiffs Norwegian counsel specifically asked about the Steering Committee minutes, which had been produced pursuant to the Federal Rules of Civil Procedure months earlier. Plaintiffs counsels direct communications with a represented party raise serious ethical issues. See Minn. R. Profl Conduct 4.2 (In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.); Id., at Comment 2 (This rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.).



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Ex. 13, at 10-11. Such internal documents were not required to be disclosed under Norwegian law because confidentiality is an important prerequisite for thoroughness and integrity of internal decision-making processes. 12 Id. at 12. In fact, the Embassy had produced during discovery thousands of pages of documents from the Stakeholders, including emails where the Innovation Norway representative at the Steering Committee was the sender or recipient, emails where other Stakeholder representatives were the sender or recipient of the email, and emails from the Embassy or MFA staff to the Stakeholders. Schroeder Aff., 7. In addition, the

Embassy and Plaintiff produced hundreds of documents regarding the Stakeholder representatives various meetings, including multiple copies of the final minutes of the meetings of the Steering Committee regarding [Plaintiffs] employment that Plaintiff appears to claim are missing. Compare Schroeder Aff., 7, with Pls Mem. at 10. VII. This Courts Denial of Plaintiffs Motion to Compel. Plaintiff moved to compel. On October 8, 2013, this Court denied the substantive aspects of Plaintiffs motion to compel. 13 Plaintiff appealed that Order to Judge Nelson, continuing to press for additional discovery, including imaging and analysis of a variety of mobile phones and other devices.

Though an important distinction under Norwegian law, such internal discussion documents had been produced pursuant to discovery nine months earlier. The court ordered that the Embassy produce a privilege log regarding a limited number of documents. Neither party challenged that aspect of the Order. 16


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VIII. Judge Nelson Affirms This Courts Order In Its Entirety, With One Exception. On November 20, 2013, Judge Nelson issued an order affirming almost every aspect of this Courts Order. Ex. 14, Order (Nov. 20, 2013) (Doc. 161) (J. Nelson Order). Among other denials of Plaintiffs many requests, Judge Nelson concluded that Plaintiff was not entitled to discovery from the initial laptop she used during her employment, stating: [Plaintiff] has indicated that she used one laptop through January 2010 and a second laptop for her remaining time at the Embassy, but that the Embassy has produced no information from the first laptop. The Embassy argues that Ewald first raised the issue of her initial work laptop in her oral argument on this motion and that the Embassy was under no obligation to preserve that laptop in 2010 when it crashed. The Court affirms the Magistrate Judges Order with respect to these laptops. As for the more recently-used laptop, the Embassy stated in its responses to Document Request Nos. 27 and 28 that it reviewed that laptop and produced 56,625 pages of documents from that laptop. Moreover, as discussed above, the issues with the electronic information produced by the Embassy have been addressed, rendering the forensic examination unnecessary. As for the initial laptop, Ewald has not asserted even a belief that relevant information existed on that computer that has not been produced from other sources. Therefore, the Court finds that the burden and expense of the requested discovery relating to Ewalds work laptops outweigh its likely benefit. Id. at 17 (emphasis added). Judge Nelson reversed this Courts Order in one respectthe collection and production of text messages and voice messages contained on the Embassy-provided mobile devices of Plaintiff and Gandrud. Id. at 1, 20-21. Judge Nelson explained that because Plaintiff had demonstrated a likelihood that relevant information is contained on 17

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certain Embassy-provided devices, the likely benefit of the proposed discovery outweighed its burden and expense. Id. at 20. Judge Nelson denied Plaintiffs attempt to recover the personal mobile devices belonging to any witnessincluding Gandrud and Davidsonbecause Plaintiff has not demonstrated her entitlement to such devices, and she has had ample opportunity to conduct that discovery. Id. at 21. The parties were ordered to meet and confer regarding a protocol for the collection and production of Plaintiffs and Gandruds Embassy-provided mobile phones. Id. The parties agreed on a protocol with respect to Plaintiffs phone, but have been unable to access Plaintiffs Embassy-provided mobile phone because Plaintiff cannot remember the password. Doc. No. 189. The parties are currently exploring alternative, non-traditional methods for accessing Plaintiffs Embassy-provided mobile phone. Id. ARGUMENT I. Legal Standard. It is the moving partys burden to show spoliation. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004). The moving party must prove: (1) the adverse party destroyed potential evidence; (2) the potential evidence was discoverable; and (3) the loss of the evidence caused prejudice to the moving party. Duy Ngo v. Storlie, No. 03-3376, 2006 WL 1046933, at *3 (D. Minn. Apr. 19, 2006) citing Stevenson, 354 F.3d at 745; Lexis-Nexis v. Beer, 41 F.Supp.2d 950, 954 (D. Minn. 1999). 14 Intent is the paramount consideration in deciding a motion for spoliation sanctions. Gallagher v.

[F]ederal law applies to the imposition of sanctions for the spoliation of evidence. Sherman v. Rinchem Co., Inc., 687 F.3d 996, 1006 (8th Cir. 2012). 18


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Magner, 619 F.3d 823, 844-45 (8th Cir. 2010).

Before a court may issue a spoliation-

of-evidence sanction, there must be a specific finding of intentional destruction indicating a desire to suppress the truth. Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007) citing Stevenson, 354 F.3d at 746. II. Text Messages From Gandruds Non Embassy-Provided Mobile Phone Are Not Discoverable and Plaintiffs Failure to Take Any Action to Obtain the Information By Other Means Precludes A Finding of Prejudice. A. The Court Ruled that Text Messages From Non-Embassy Provided Mobile Devices Are Not Discoverable.

The parties and the Court have already spent significant time and effort determining what is discoverable in this case in the briefing and argument regarding Plaintiffs motion to compel. The Embassy had advised both Plaintiff and the Court that it had not taken steps to collect or produce text messages because, among other reasons, there had been no indication from the pleadings, the 26(f) conference, discovery, or any other source that text messages would be relevant to Plaintiffs claims. Doc. No. 116 at 30. Plaintiffs motion was initially denied when first considered. M.J. Rau Order at 9. Plaintiff objected. Doc. No. 139. In largely affirming denial of Plaintiffs motion, Judge Nelson determined that text messages from two specific devices were discoverable: the mobile phones provided by the Embassy to Ewald and Gandrud for work-related purposes. Id. at 21 (emphasis added). The Court determined Ewald is entitled to discovery of relevant text messages and voice messages contained on those devices. Id. Judge Nelson chose her language deliberatelyonly text and voice messages from Embassy-provided mobile phones were


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deemed discoverable. Id. The Court made clear that information from devices not provided by the Embassy was not discoverable: Nor will the Court order production of the personal mobile devices belonging to any witness. Id. (emphasis added). Plaintiff did not produce any text message from her personal mobile phone in discovery. Schroeder Aff. 12. Nor did Plaintiff, prior to May 31, 2013, claim that she sent discoverable text messages on her Embassy-provided mobile phone. See Doc. No. 11022, at 14 (noting for first time alleged prevalence of text messages). Plaintiff withheld that information until discovery was almost completed. Because the Court has already ruled that mobile devices not provided by the Embassy do not fall within the category of discoverable material, Plaintiff cannot prove spoliation. B. Plaintiff Cannot Show Prejudice Because She Made Absolutely No Effort to Obtain the Information By Other Means.

Plaintiff points to one email in the over 89,000 pages of documents produced in this caseRNE 835that references a text message. Pls Mem., at n. 3. That email was produced to Plaintiff on December 4, 2012. Schroeder Aff. 10. Three months after Plaintiff received the email, her counsel deposed Gandrud. Id. During the deposition, counsel for Plaintiff questioned Gandrud regarding 55 different documents spanning the Bates-range of documents produced by the Embassy, including several documents within pages of RNE 835. Id. Counsel for Plaintiff did not question Gandrud regarding the one document where he referenced a text message; nor did counsel for Plaintiff even mention the issue of text messages in over seven hours of questioning. Id.


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Moreover, Plaintiff made no effort to question Christina Carleton (referenced in the email), or Ambassador Strmmen (the recipient of the alleged text) about content of that or any other text messages. Ambassador Strmmen was deposed eight months after the Embassy produced the email. Schroeder Aff. 10. As this Court previously

recognized, Plaintiff raised no issue regarding text messages until the eve of the parties mediation near the close of discovery. M.J. Rau Order at 4, 9. The requirement that a party seeking spoliation sanctions must show prejudice exists precisely to deter gamesmanship. In evaluating prejudice, we have looked to whether an allegedly harmed party took other available means to obtain the requested information. Gallagher, 619 F.3d at 844. Because Plaintiff made absolutely no effort to obtain the requested information during discoveryand instead sat on her hands, apparently calculating when she could cause the most disruptionshe cannot show prejudice. Plaintiffs lack of prejudice is further shown by the sheer volume of documents and information Plaintiff did receive from Gandrud. The Embassy produced 1,558

documents and emails from Gandrud (consisting of 4,953 pages of material)including 419 different documents that contain Gandruds BlackBerry signature line (Sent by BlackBerry). 15 Schroeder Aff. 5. Any claim that the single text message referenced in Gandruds email would have been different from the thousands of pages of emails and Indeed, Plaintiff claims that Gandrud often used text messaging and that his mobile phone and its information no longer exist is simply misleading. Plaintiff can point to one email that references a text message and a substantial portion of the emails produced from Gandrud were sent from his BlackBerry.


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documents produced to Plaintiff is pure speculation.

Gallagher, 619 F.3d at 844

(Appellants argue that the destroyed email files would have supported their claim of intentional discrimination. However, appellants offer no support for such speculation; there is no basis for inferring that the missing emails would be of a different character than the emails already recovered and produced. Therefore, we agree that Appellants have not demonstrated the requisite prejudice.); Koons v. Aventis Pharm., Inc., 367 F.3d 768, 780 (8th Cir. 2004) (party seeking sanctions could not show prejudice because (1) author of lost notes regarding investigation into plaintiffs termination testified at trial; and (2) there was no evidence that the document he created contained anything that would have harmed [defendant] or helped [plaintiff] in the course of this litigation.); Escobar v. City of Houston, No. 04-1945, 2007 WL 2900581, at *19 (S.D. Tex. Sept. 29, 2007) (defendants preservation and production of other relevant information mitigated concern about failure to preserve certain electronic communications); Saul v. Tivoli Sys., Inc., No. 97 Civ. 2386, 2001 U.S. Dist. LEXIS 9873, at *50 (S.D.N.Y. July 17, 2001) (In cases where a party has had the opportunity to pursue discovery but has not aggressively done so, the courts have gone so far as to hold that the subsequent improper destruction of once-available evidence by the other side should not trigger any spoliation sanctions.). 16

Plaintiffs claim that the Embassy was obligated to preserve text messages is based entirely on hindsightnamely, the one email Plaintiff points to that referenced a text message. It is well established that hindsight cannot be the basis for an after-the-fact claim that a partys preservation efforts were unreasonable, let alone grounds for sanctions. Rhoads Indus., Inc. v. Bldg. Materials Corp. of Am., 254 F.R.D. 216, 226 (E.D. Pa. 2008) ([H]indsight should not carry much weight, if any, because no matter 22


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Awarding sanctions to Plaintiff under these circumstances would reward precisely the kind of discovery abuse the Federal Rules seek to dispelby encouraging parties who do nothing to obtain allegedly missing information during the discovery period to wait until the eve of trial and seek an award for their inaction in the form of sanctions. III. Judge Nelson Has Already Ruled that Plaintiffs Previous Work Laptop Was Not Discoverable and that Plaintiff Cannot Show Prejudice. Plaintiff moves for sanctions on the basis of the Embassy destroying a physical laptop computer from which Plaintiff herself said she had lost everything after it crashed in January 2010. Pls Mem. at 1; Ex.10. Judge Nelson has definitively ruled the laptop was not discoverable and Plaintiff cannot show prejudice. In her motion to compel, Plaintiff sought production of her work laptops that she used while employed by Defendant. Doc. No. 109, at 18. Plaintiffs request was denied. Ex. 1, M.J. Rau Order at 9. Judge Nelson rejected Plaintiffs appeal, stating: As for the initial laptop, Ewald has not asserted even a belief that relevant information existed on that computer that has not been produced from other sources. Therefore, the Court finds that the burden and expense of the requested discovery relating to Ewalds work laptops outweigh its likely benefit.

what methods an attorney employed, an after-the-fact critique can always conclude that a better job could have been done.); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (Zubulake IV) (Must a corporation preserve every shred of paper, every e-mail or electronic document, and every backup tape? The answer is clearly no. Such a rule would cripple large corporations.); see Columbia Pictures Indus. v. Bunnell, No. CV 06-1093, 2007 WL 2080419, at *3-6 (C.D. Cal. May 29, 2007) (no duty to preserve temporarily-stored electronic files where producing party had no reason to anticipate it would be sought and requesting party first asserted duty to preserve in a motion). Tellingly, Plaintiff has not produced a single text message in this case and only raised the issue at the end of discovery. 23

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Ex. 14, J. Nelson Order, at 17 (emphasis added). Indeed, as Judge Nelson noted, the Embassy reviewed and produced over 56,000 pages of documents from Plaintiffs laptop. Id. Indeed, 5,337 of those documents from Plaintiffs laptopconsisting of 22,764

pages of materialwere dated January 2010 or earlier. Schroeder Aff. 6. 17 As Judge Nelson already found, Plaintiff cannot show that any relevant information from her previous laptop has not already been produced. Plaintiffs claim that the Embassy

destroyed her first laptop is outright misleading and should be rejected. 18 IV. Plaintiff Has Already Been Provided Documents Related to The Steering Committee and The Embassy Repeatedly Defined The Scope of Its Search and Plaintiff Never Took a Contrary Position. As Plaintiff reiterates in her brief, her Complaint nam[ed] The Royal Norwegian Embassy and Gary Gandrud as defendants. Pls Mem. 3. Plaintiff did not sue the Government of Norway, nor in her multiple disclosures and discovery responses did she name Innovation Norway or its representative to the Stakeholder committee as possessing discoverable information. Yet Plaintiff now claims she is entitled to sanctions because the Royal Norwegian Embassy was obligated to produce Innovation Norways documents. Plaintiffs request fails for multiple reasons.

As Plaintiff and her counsel may be aware, a computer crashing is not like losing a file cabinet. Most electronic documents are saved to a server, from which the Embassy produced them to Plaintiff. Plaintiffs hyperbole in this regard is disingenuous, claiming the Embassy cleverly failed to reveal that it discarded her former laptopthe laptop she herself knew had crashed and from which she claimed to have lost everything. Pls Mem. at 6, n. 4; Ex. __. 24


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One, Plaintiffs motion overreaches with no legal support. Plaintiff claims the entire Government of Norway had an obligation to preserve documents. Pls Mem. 12. Plaintiff can point to no case where a lawsuit against one unit (here, the Royal Norwegian Embassy in Washington, D.C.) of one government agency (here, the Ministry of Foreign Affairs) compelled all agencies of that government to preserve documents. Two, the Embassy did not destroy potential evidence; it took reasonable steps to preserve and collect it. As a result of the herculean document-collection efforts in this case, Plaintiff possesses hundreds of documents regarding the Steering Committee, including meeting minutes, emails where the Innovation Norway representative to the Steering Committee was the sender or recipient, emails where other Stakeholder representatives were the sender or recipient of the email, and emails from the Embassy or MFA staff to the Stakeholders. Schroeder Aff., 7. Under these circumstances, there is no prejudice to Plaintiff. See Escobar, 2007 WL 2900581, at *19 (defendants

preservation and production of other relevant information mitigated concern about failure to preserve certain electronic communications). Three, it is also critical that, here again, Plaintiff was notified throughout discovery of precisely what the Embassy would and would not produce. As discussed above, the parties counsel dialogued and agreed that the Embassy was going to run search terms only on the email accounts of a variety of MFA custodians; not on the email accounts of Innovation Norway or any other Stakeholder. Ex. 9. Plaintiffs counsel did not object to this plan; she specifically agreed. And, as this Court previously found, the Embassy explicitly notified Plaintiff on December 3, 2012 that it would only provide a 25

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limited waiver of the inviolability of the archives and documents on file with the Consulate General in Minnesota and the Embassy in Washington D.C. Ex. 1, M.J. Rau Order at 4 (emphasis added). producing documents to her. Plaintiff was told explicitly what entities would be As this Court already found, Plaintiff did nothing to

challenge the Embassys discovery limits until the eve of a private mediation over six months later. Id.; see also Saul, 2001 U.S. Dist. LEXIS 9873, at *50 (in cases where a party has had the opportunity to pursue discovery but has not aggressively done so, the courts have gone so far as to hold that the subsequent improper destruction of onceavailable evidence by the other side should not trigger any spoliation sanctions.). After extensive review and discussion, the limits that the Embassy placed on discovery were sustained by Judge Nelson. Ex. 14, J. Nelson Order at 7-12. Four, the documents cited by Plaintiff in support of her claim of spoliation do not say what she claims they say. 19 According to Plaintiffs translation, Ambassador

Strmmen said that under Norwegian FOIA law, the members of the Steering Committeei.e., the individual representatives of the Stakeholder institutionswould be considered part of the Ministry of Foreign Affairs and the correspondence between the Ministry and the Steering Committee Members will be considered internal documents. Ex. 13, Doc. No. 183 at 11 (emphasis added). Indeed, and fatal to her claim of prejudice, the Embassy produced to Plaintiff hundreds of documents from the Steering Committee.

Plaintiff filed this uncertified translation of a document submitted in opposition to the Embassys motion for summary judgment on January 16, 2014. Doc. No. 183. Plaintiffs opposition brief and supporting materials were due on November 6, 2013. See Doc. Nos. 142-158. 26


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Accordingly, Plaintiff cannot show Innovation Norway lost any discoverable information or that she suffered any prejudice, much less that the Embassy took steps to intentionally destroy documents in order to suppress the truth. Plaintiffs motion for sanctions in this regard is yet another tactic to profit from her own failure to take action in discovery. CONCLUSION For all the reasons stated above, the Embassy respectfully requests that the Court deny Plaintiffs Motion for Sanctions in its entirety, award the Embassy its full attorney fees and costs in opposing Plaintiffs Motion, and issue an opinion to dissuade litigants from abusing the discovery process. FAEGRE BAKER DANIELS LLP Dated: January 23, 2014 s/ Joel P. Schroeder Daniel G. Wilczek, MN Atty #131660 Joel P. Schroeder, MN Atty #0339556 Sean R. Somermeyer, MN Atty #0391544 2200 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402-3901 Phone: (612) 766-7000 Attorneys for Defendant Royal Norwegian Embassy