Back in 2014, I posted a blog about the problems contractors were having digging the tunnel for Route 99 in Seattle. Bertha, the boring machine, hit a pipe and some rocks and got stuck, causing two years of delay.
Well, that problematic situation, now a $624 million lawsuit, has wound its way through the courts and the Seattle Tunnel Partners (“STP”) is blaming the slow down on the pipe they hit. Unfortunately, STP has lost the pipe. Yep, they can’t find the pipe that stopped their boring machine for 2 years. Not only did they lose the pipe, but they lost a pallet of 2 granite boulders and the deputy project managers journal for the months before and after the work stoppage.
Of course, the other parties to the lawsuit are pretty upset that the pipe, rock and journal can’t be found and they asked the court to sanction STP for losing the pipe. After making 190 Findings of Fact, the court found that STP purposefully lost or destroyed the pipe, rocks and journal in violation of its duty to preserve. The court also ruled that the parties that wanted to examine the pipes, rocks and journal are entitled to a presumption that this evidence would have been bad for STP. The court has set a special hearing to determine the actual sanctions to be given.
Believe it or not, this sad story has some application to contractors in Nebraska and Iowa. If you have a project that hits a snag, you are well served to keep all the evidence of the problem, or at least invite the other parties to your contract see the problem before you fix it. Otherwise, a party may claim that you destroyed important evidence that would have been bad for you.