[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
On September 7, 2020, trees fell on a transmission line operated by Bonneville Power Administration (“BPA”). A fire resulted. It joined another fire and caused widespread destruction. A lawsuit also resulted, with a spoliation motion. Sanctions were granted for spoliation of physical evidence and ESI. The applicable legal standard differed based on the nature of the spoliated evidence. The decision provides an excellent example of those principles, as well as an exhaustive explanation of when the duty to preserve was triggered. 21st Century Centennial Ins. Co. v. U.S.A., 2026 WL 550319 (D. Ore. Feb. 26, 2026).
THE CHRONOLOGY
On September 8th, the day after the fire started, a BPA supervisor asked the U.S. Forest Service (“USFS”) to be notified if a “fire ignition” investigation was taking place so that BPA could keep its crews out of the area. On September 12th, BPA drafted a guidance document stating that “there is a significant liability concern for BPA if any of our actions or equipment can be associated with the cause of any of these devastating fires” and that BPA would “retain[ ] the services of a forensic fire investigator … to collect and analyze relevant evidence associated with any of the events that could have been caused by BPA actions for [sic] equipment.”
[T]here is a significant liability concern for BPA if any of our actions or equipment can be associated with the cause of any of these devastating fires.
21st Century Centennial Ins. Co. v. U.S.A., 2026 WL 550319 (D. Ore. Feb. 26, 2026).
On September 12th or 13th, the USFS sent a preservation notice to BPA requesting that “[BPA] and [its] agents preserve all evidence, including but not limited to physical evidence, photographs, records, communications, and documents, in your possession related to the Holiday Farm Fire” and citing BPA’s duty to “preserve all evidence that may be relevant to any potential litigation arising from or relating to the Holiday Farm Fire.”
On September 13th, a USFS investigator arrived at the ignition site. BPA crews were at work and: “The investigator observed two green fir trees laying in the power line corridor that had been ‘cut into pieces and pushed to both sides of the corridor with heavy equipment.’”
Four days later, on September 17th, USFS investigators returned to the site. They saw a large tree, Tree #1, lying on top of the transmission line, and a second one “that appeared to have fallen on the line as well but was subsequently cut out by BPA ground crews and moved by machine to the north side of [a] clearing.” The USFS found that there were three trees “associated with the transmission line coming down.”
BPA and its engineer asked the USFS when hazards could be removed. The USFS asked them to return when the investigation concluded. The engineer attempted to take photos but was asked to wait.
Three days later, on September 20th, the USFS returned to the site. The tree that had been laying on the transmission line had been moved. Heavy machinery had been through the area and several locations were spray painted and tagged. In a pile of limbs where Tree #1 had been, one limb had a transmission line mark on it. The USFS decided not to perform a “FARO scan” that had been planned because the “site had changed significantly… by unauthorized persons….” Apparently, a “FARO®” scan is a system to create a 3d digital model. FARO Focus Laser Scanning Solution | Hardware | FARO
On September 22nd, the USFS met with a BPA foreperson in order to collect infrastructure parts that had already been removed. BPA apparently did not notify its subcontractors of the litigation hold:
At some point “within a couple of weeks” of the fire but possibly “sooner than that,” BPA’s general counsel’s office sent a notice of potential litigation against BPA arising from the Holiday Farm Fire…. BPA contracts with third parties to remove dangerous trees and manage vegetation…. These third-party contractors produced no preservation notices in response to discovery requests in this case…. At least one BPA contractor stated without such a notice, emails related to the Holiday Farm Fire would have been automatically deleted….
Claims, cross-claims, subrogation claims, tort claims, dismissal motions, and jurisdictional discovery followed. The “Non-BPA Parties” bought tort claims against the United States through BPA.
“On July 30, 2025, the Court ordered the Non-BPA Parties to file a formal motion raising issues related to compelling discovery from BPA, the alleged spoliation of evidence, and requests for sanctions.” The following motion sought, among other things, “sanctioning the United States for BPA’s spoliation of physical evidence and electronically stored information….” The court wrote that the United States, as a party in a civil suit, is subject to the Federal Rules of Civil Procedure “as any other litigant.”
RULE 30(b)(6) DEPOSITION
Initially, the court dealt with a motion challenging the Rule 30(b)(6) designee who “did not know or was not aware of the answers to 122 deposition questions” that were “”squarely within” the topics of the deposition notice. The court wrote:
The United States’ failure to adequately prepare BPA’s 30(b)(6) designee is fundamentally motivated by its disagreement with this Court’s discovery orders. Sanctions are appropriate under the Court’s inherent authority because the United States’ failure to prepare its witnesses on grounds rejected by a Court order is abuse of the judicial process, and this Court will not tolerate such insolence.
TRIGGERING THE DUTY TO PRESERVE
The 21st Century Centennial court then turned to the spoliation issue:
- “A litigant is generally under a duty to preserve evidence that they know or should know is relevant to any claim or anticipated claim.”
- “District Courts in the Ninth Circuit generally apply a preponderance of the evidence standard of proof to spoliation motions.”
The court wrote: “The record shows that BPA anticipated investigations examining the involvement of its equipment in the fire area as early as September 9, 2020, and specifically noted the need to ‘keep [its] crews out of that area until the investigation is over.’” By September 12th, BPA wrote that it was important for crews “to know that if they find a tree caused outage that resulted in a fire, there is likely going to be an investigation of that specific event to ensure we have the right amount of information needed to learn about and limit BPA’s liability risk.”
The USFS investigation began on September 9th and a preservation notice was sent to BPA on September 12th or 13th. The court wrote that BPA recognized the “significant liability concern[s]” “that evidence that its equipment was involved in the fire would pose.”
The 21st Century Centennial court held:
On these facts, BPA should have known that litigation over its involvement in the fire was reasonably foreseeable on September 9, 2020. BPA itself acknowledged the need to preserve evidence by keeping its crews outside of investigative areas until the investigation concludes. BPA stated that telling its crews to stay out of the area is generally how it takes steps to maintain evidence in anticipation of litigation…. BPA therefore had a duty to preserve evidence on September 9, 2020.
The non-BPA parties alleged that the United States, through BPA, failed to preserve physical evidence and ESI.
Physical Evidence
The court analyzed the failure to preserve physical evidence under its common-law inherent authority. It wrote that, under that standard, there is “willful spoliation” if a party has “some notice” that the evidence was potentially relevant to the litigation before it was destroyed.
The court explained: “Despite the duty to preserve evidence, BPA did not preserve the ignition site within its right of way. When U.S. Forest Service officials arrived at the site on September 13, trees in BPA’s power line corridor had already been moved and cut up. By September 17, 2020, after BPA officials had spoken with Forest Service officials, BPA had moved trees that had appeared to have fallen on the transmission line. By September 20, the ‘general and specific origin areas had been driven through with heavy machinery” and the tree that U.S. Forest Service investigators believed had brought BPA’s transmission line to the ground had been moved.’”
Despite the duty to preserve evidence, BPA did not preserve the ignition site within its right of way.
21st Century Centennial Ins. Co. v. U.S.A., 2026 WL 550319 (D. Ore. Feb. 26, 2026).
Also, BPA hired contractors to “cut down every tree tall enough to hit the transmission line in a 25-foot area outside the normal BPA right-of-way…. regardless of their health or previous fire damage…. The record also supports a finding that BPA had control over the ignition site in its right of way, moved trees at the ignition site, and that its engineering consultant did work in the area while BPA was aware of the Forest Service’s investigation.”
The 21st Century Centennial court found substantial prejudice and willfulness, writing that:
The Non-BPA Parties must now rely on a Forest Service investigation of an ignition site that was neither preserved in its original state nor maintained throughout the investigation. The Non-BPA Parties do not have access to a FARO scan documenting the ignition site because of destruction of the original site and changes to the site after the Forest Service began its investigation.
The court ordered that an adverse inference be taken and awarded attorneys’ fees.
ESI
The request for sanctions related to ESI was addressed under Fed.R.Civ.P. 37(e):
Here, BPA failed to notify its contractors of a litigation hold, resulting in the loss of emails associated with at least one contractor. BPA was aware of its duty to preserve evidence two days after the fire but took its time issuing a litigation hold “within a couple of weeks” of the fire…. BPA’s 30(b)(6) designee did not know which BPA staff received a notice to preserve emails…. Those emails are relevant to the Non-BPA Parties’ claims as BPA relied on its contractors to conduct its vegetation management in the Holiday Farm Fire area. The United States points to no evidence comparable to the lost emails in response to the Non-BPA Parties’ motion.
The deponent “offered no explanation for BPA’s failure to notify its contractors or any statement that BPA took actual steps to direct them to preserve evidence.” The 21st Century Centennial court added: “BPA’s 30(b)(6) designee did not know whether BPA issued final preservation guidance to its patrol crews.” It wrote:
BPA offers no explanation for its failures to preserve electronically stored information it knew was relevant to reasonably foreseeable litigation. Its complete failure to offer any explanation, and its general recalcitrance in complying with this Court’s discovery management orders, taken as whole, lead the Court to conclude BPA’s conduct is in bad faith and the spoliation of critical evidence is willful.
This was sufficient to trigger sanctions under Fed.R.Civ.P. 37(e)(2). The court ordered an adverse inference and precluded certain testimony.
The court addressed several other issues, including attorneys’ fees under jurisdictional discovery, waiver of objections because they were untimely, and a 1.8 terabyte document dump.
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