16 January 2007
CP Rail Deleted E-mails Related to Minot Accident
Minot North Dakota USA - A new twist in the legal
wrangling over a deadly train derailment five years ago this Thursday has shed some fresh light on the tactics purportedly used by one
of the parties in the resulting lawsuits, the Minot Daily News reports.
According to a legal brief by U.S. Chief District Judge James Rosenbaum dated Thursday, the deletion of e-mails
concerning the deadly 18 Jan 2002, derailment of a Canadian Pacific Railway train just outside Minot has prompted
Rosenbaum to allow a defense team access to evidence gathered by a computer forensics expert.
The brief states that during state court proceedings, representatives of one of the derailment plaintiffs, Claudia Roberts, discovered
an e-mail message sent by a Soo Line manager to the railroad's top claims agent that began by stating, "In the
tradition of keeping very few Minot-related e-mails."
During the deposition of the same manager in the case, he was asked about the message, at which time he admitted destroying
e-mails about the Minot derailment, saying he had been ordered to do so by a higher-up in the company.
After this revelation, CP Rail hired the computer forensics expert to investigate whether electronic data had been destroyed and, if
so, whether that data could be retrieved, according to the brief.
The plaintiff was seeking, via the discovery process, access to the information gathered by the computer expert and permission to
depose the expert as soon as possible.
The railroad argued that the motion should be denied until the issue of preemption had been solved, stating that if it was ruled to be
immune to lawsuits under federal law, any destruction of evidence in the case would be irrelevant.
Calling it a "no harm, no foul" argument, Rosenbaum denied the request, likening it to a group of bank robbers planning to
rob a bank, only to arrive and "find that the bank failed and closed its doors the day before the robbers' arrival.
Just as the conspiracy to rob the bank is, itself, a crime, regardless of the impossibility of the bank robbery's success, so too, is
an attempt to suborn the fact-finding process an affront to the court, even if there will ultimately be no
fact-finding."
Also, the railroad argued that any issue on the state court cases would be precluded by the change in jurisdiction to federal court.
Rosenbaum also denied that argument, stating that the court has authority to make sure that its processes are followed properly.
Attorney Mike Miller of the Fargo office of Solberg, Stewart, Miller and Tjon, which represents Roberts in the case, said that the
revelation that evidence is being destroyed could be "dynamite stuff if the cases go forward."
"It's a very unusual thing," he said. "I can't think of too many cases where one of the parties involved has destroyed
evidence. Right now, we don't even know the amount of evidence that has been destroyed, but we're going to get those answers."
Attempts to contact Minneapolis transportation attorney Timothy Thornton, who represents CP Rail in the cases, were unsuccessful
Monday.
Miller said that regardless of what the outcome is on the issue of preemption, the discovery is going to make a difference to the
judge in the case.
"The judge may be able to pursue numerous remedies available to him," he said.
Miller said that issues being addressed by Congress in Washington, D.C., might also have an impact on the status of the cases.
"This fight is being fought on more than one front," Miller said. "I can't say an adverse decision by the Eighth
Circuit is going to be the end of it."
Miller said that if the Minot cases go forward in front of the jury, the judge will be able to inform the jury that evidence was
likely destroyed in the case and that evidence was likely very harmful to the railroad's case.
"It could be a big step in the right direction when we go forward," Miller said.
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