“Bad timing” is often used to explain failure or why bad things happen. In the case of Marysville, California resident Joseph Nevis, bad timing likely led in part to the Christmas Eve amputation of both legs by an Amtrak train. Bad timing because local police determined that Joseph was “too drunk for jail” and deposited him at Rideout Memorial Hospital at 1:26 a.m. Bad timing in that a doctor examined him for less than a minute before authorizing his unsupervised discharge at 1:56 a.m. Bad timing in that shortly thereafter he tripped on the nearby mainline railroad tracks where the Coast Starlight train to Seattle subsequently passed right over on schedule at 2:50 a.m.
Well, Joseph recently found out that bad timing can sometimes work in your favor. While his (and his lawyer’s) bad timing in failing to timely produce Joseph’s cell phone for ediscovery purposes could have resulted in sanctions and the potential dismissal of the lawsuit filed against the hospital, Amtrak, and other responsible parties, such was negated by the defendants’ equally bad timing.
In Nevis v. Rideout Memorial Hospital, et al. (17-cv-02295i in the U.S. District Court Eastern District of California) defendants had sought terminating sanctions (dismissal), or, alternatively, sanctions in the form of adverse inferences, due to evidence spoliation. The evidence spoliation referred to Joseph’s cell phone, which had been requested as part of discovery.
In their motion for sanctions, defendants argued that the plaintiff “intentionally misrepresented the status of his cell phone and purposely destroyed evidence.” However, the judge ruled that while the plaintiff’s conduct regarding production of the cell phone was clearly questionable, the defendants were untimely in their request for production of the cell phone, having waited until just one month before the discovery completion deadline. Due to the late request, defendants never made a motion to compel on this topic, and thus the court was never able to address the issue of cell phone production prior to the motion for sanctions.
In making the ruling, the judge relied on the Federal Ninth Circuit court’s five-factor test to evaluate whether case dispositive sanctions are warranted—a test in which timing plays a key role, as evidenced by the judge’s findings:
Little doubt that all parties in this case will be paying closer attention to timing issues and deadlines. It’s also likely that timing—bad or otherwise—will play a crucial role in the ultimate outcome of the case.