A place to ask questions and add to probative and informative discussions associated with the various aspects of the field of fire investigation. -- FORUM RULES---BE CIVIL AND NO NAME CALLING, NO BELITTLING, NO BERATING, NO DENIGRATING others. Postings in violation of these rules can be removed or editted to remove the offending remarks at the discretion of the moderators and/or site administrator.
Re: Destruction of notes and data -921 LEGAL CHAPTER REFERENCES
Posted by:
Jim Mazerat (IP Logged)
Date: February 19, 2007 08:29PM
Evidently there is a court that did not agree with your interpretation of 921, when it came to excluding a witness’ testimony. They addressed the destruction of field notes and the compliance with 921.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Gary and Phyllis Torske,
Plaintiffs,
-vs-
Bunn-O-Matic Corporation,
Defendant.
Case No. A4-03-21
Further, the Court is not persuaded that the destruction of Dodson’s field notes constitutes a basis for excluding Dodson’s opinions or testimony at trial. Apparently, it is Dodson’s practice to destroy his field notes after transferring them to his computer. According to Dodson, his original notes are destroyed as a precautionary measure because they may be physically contaminated by the scene and pose a threat to those who handle them. While Bunn-O-Matic may question the veracity of this explanation, it presumably has received a copy of the notes in their computer form. In any event, the Court does not view Dodson’s actions as presumptively unreasonable since the substance of his field notes have been electronically preserved.
Dodson’s alleged failure to adhere to NFPA guidelines is somewhat more problematic. Although the Torskes do not explicitly refute Bunn-O-Matic’s assertion that Dodson did not follow all NFPA guidelines, they claim that Bunn-O-Matic’s advocacy of rigid adherence to NPFA guidelines ultimately undermines its assertion regarding Dodson’s conversations with Gary Torske. In addition, the Torskes have submitted a statement from Dodson wherein he (1) disputes the assertion that his investigation was lacking or otherwise conducted in a manner non-compliant with recognized protocol, (2) states that any discussion of protocol during his deposition tends to be superficial because he was never asked the “how and the why” of his actions, (3) alludes to his strict adherence to unspecified investigative procedures used by his company during fire investigations, (4) indicates that others may not adhere to the same procedures, and (5) suggests that the experts opinions on which Bunn-O-Matic’s criticisms are based are unreliable experts.
Having carefully reviewed the parties’ filings along with the transcript of Dodson’s deposition, the Court concludes that the exclusion of Dodson’s testimony at trial for failure to strictly follow NFPA guidelines is not warranted under the circumstances. It is not readily apparent that a failure to strictly adhere to all NFPA guidelines renders an investigation incomplete or unreliable. In addition, while these guidelines provide a legitimate criteria for evaluating an investigation, there is nothing before the Court to suggest they are exhaustive or exclusive.