IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF GEORGIAATLANTA DIVISIONBENJAMIN BURGESS, RHONDABURGESS, HEIDI HOWARD,JOYCE MARTIN, BETHKARAMPELAS, TERRI DACY, andMICHAEL DACY, individually andon behalf of all others similarlysituated,Plaintiffs,v.Civil ActionFile No.: 1:13-CV-02217-SCJRELIGIOUS TECHNOLOGYCENTER, INC., ASSOCIATION FOR BETTER LIVING ANDEDUCATION INTERNATIONAL, NARCONON INTERNATIONAL,and NARCONON OF GEORGIA,INC.,Defendants.
NARCONON OF GEORGIA, INC.’S RESPONSE TO PLAINTIFFS’MOTION TO PRESERVE EVIDENCE
Defendant Narconon of Georgia, Inc. (“NNGA”) hereby responds toPlaintiffs’ Motion to Preserve Evidence, as follows:Plaintiffs seek an order directing non-parties – agents and agencies of the Stateof Georgia (the “State”) – to preserve possibly discoverable evidence in their hands.
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NNGA has no objection to the principle of preservation of evidence. The presentmotion, however, is not well-taken.
1. The Court Has No Jurisdiction Over Non-Parties.
The motion seeks an order in the nature of an injunction against
non-parties
.The Court is without jurisdiction to enter a preservation order against a non-party. Inre Grand Casinos, Inc. Sec., 988 F. Supp. 1279, 1273 (D. Minn. 1997) (“Plaintiffsalso requested an Order which would mandate the preservation of all documents, andother tangible evidence ... whether the evidence was in the care, custody or control of the parties to this action, or in that of a third-person or persons... [W]e are aware of no authority which would subject third-persons to our jurisdiction.”); see Ferrari v.Gisch, 225 F.R.D. 599 (C.D. Cal. 2004); Asset Fund Ltd. Partnership v. Find/SVP,Inc., 1997 WL 58884, *1 (S.D.N.Y. 1997).It is a weighty thing that the Plaintiffs are asking this Court to do, for they arerequesting that the State be placed under a court order to preserve documents, on painof potentially being subject to contempt – all without even being parties to the actionor receiving any due process.
2. Plaintiffs Have Failed to Adduce Evidence of a “Risk of Loss.”
At bottom, Plaintiffs’ rationale for its motion is that there is a risk of “loss or destruction” of evidence unless the non-parties are made subject to an order.
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Plaintiffs primarily rely on Capricorn Power Co. v. Capricorn Power Co., 220 F.R.D.429 (W.D. Pa. 2004). In that case, however, the court
declined
to issue a preservation order, “based upon the lack of the presence of a specific, imminentthreat [of loss or destruction] supported by the record.” In the present case, Plaintiffsurge that the State agencies be made subject to an order to “safeguard the seizedinformation,” on the basis of unsupported speculation that the State will otherwisedestroy evidence.
E.g
., Doc. 26 at 8 (“Plaintiffs’ limited request for a preservationorder is necessary in order to ensure that the records at issue are not permanentlydestroyed.”) No evidence supporting this remarkable conclusion is presented,however. NNGA knows of no evidence suggesting that the State will violate itsstatutory obligations to return seized property.
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Plaintiffs cite language from Hester v. Bayer Corp., 206 F.R.D. 683 (M.D.Ala. 2001), that “[t]he court will entertain the entry of a preservation order should itcomply with equitable concerns of all interested parties.” [Doc. 26 at 5.] Thisquotation is pulled from Hester’s holding
vacating
a preservation order obtained bythe plaintiffs in state court before removal because of a failure to satisfy theevidentiary burden:
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Georgia law independently imposes a duty to return seized documents to their owner if no criminal charge is preferred. O.C.G.A. § 17-5-2.
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