Sunnyside Gold Corporation (SGC), a company involved as a defendant in the District of New Mexico lawsuit regarding a hazardous substances release from the Gold King Mine in 2015, asked the court on Monday to impose sanctions on the federal defendants, specifically the Environmental Protection Agency (EPA) and the United States for allegedly destroying evidence.
According to the party’s motion, the failure of the government to provide accurate records has caused prejudice in the lawsuit against SGC. It argued that the high volume of documents provided by the federal defendants does not negate the allegations that they failed to preserve evidence.
“The Federal Parties failed to uphold their duty to ensure preservation of unquestionably relevant documents, data, and electronically stored information in the custody of the Environmental Protection Agency,” the filing claimed. “The Federal Parties disregard of their preservation obligations has directly prejudiced SGC’s ability to defend itself against claims in this litigation as well as SGC’s ability to pursue an affirmative due process claim.”
Allegations that the government destroyed evidence began with a motion from two plaintiffs, the Navajo Nation and New Mexico, in early May. The missing evidence reportedly includes communication between two on-scene coordinators at the time of the blow out. The plaintiffs alleged that the evidence was destroyed purposefully, and that the evidence could support a theory that the coordinators were attempting to open the mine rather than prepare it for a review.
SGC argued that the destroyed evidence was relevant and that the federal defendants should have taken steps to preserve the evidence. Reportedly, despite EPA employees being instructed to preserve communications by forwarding to an EPA email, this system is not sufficient as it allows the employees to determine what is preserved. SGC argued that through this system, the coordinators may not have sent all of the relevant communications for preservation.
According to SGC, the EPA is attempting to include a third party to pay for some of the clean up costs, and that because of this lack of records, it has been forced to be involved in the lawsuit and incurred large costs.
SGC, represented by Crowley Fleck PLLP, asked the court to determine what sanctions match the misconduct, reiterating that the spoliated documents likely would be unfavorable to the EPA and that if it had the documents, it would have more evidence that it was not at fault.
